Amicus Curiae Brief — Bousley v. United States

No. 96-8516 NOV 13 199)

@LERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

KENNETH E. BOUSLEY,

Petitioner,

Vv.

JOSEPH M. BROOKS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AND FAMILIES

AGAINST MANDATORY MINIMUMS FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

RONALD H. WEICH sa

BONNIE I. ROBIN- VERGEER*

ZUCKERMAN, SPAEDER, GOLDSTEIN,

TAYLOR & KOLKER, L.L.P.

1201 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 778-1800

DAVID M. PORTER KYLE O’DOWD

801 K Street, 10th Floor § 1612 K Street, N.W., Suite 1400

Sacramento, CA 95814 Washington, D.C. 20006

(916) 498-5700 (202) 822-6700

*Counsel of Record

i

QUESTIONS PRESENTED

1. Does this Court’s decision in Bailey y. 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)?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..............cceeeeeees i

TABLE OF AUTHORITIES ................000000- iv

INTERESTS OF AMICI ...........0 0c ceeeeeeeeees l

SUMMARY OF ARGUMENT ............-.25ee00e: l

RTE, Bn 0 hee eins chi cecdidiurinsnececoces 4

I. PURSUANT TO 28 U.S.C. § 2255, PETITIONER

IS ENTITLED TO VACATUR OF HIS

CONVICTION AND SENTENCE IMPOSED

UNDER 18 U.S.C. § 924(C), AS THEY WERE

BASED ON CONDUCT THAT IS NOT A

SEE Seb shecdsovGcDas plbek seated acaccas 4

A. Under Davis v. United States, intervening

Interpretations of Substantive Federal

Law Apply Retroactively on Collateral

UNI oc cccccbisncocvsvecdeaeesecee 5

B. Teague v. Lane is Inapposite ........... 1]

Il. PETITIONER’S BAILEY CLAIM IS NOT

PROCEDURALLY BARRED, BUT IF IT

WERE, HE COULD DEMONSTRATE

“CAUSE” AND “PREJUDICE” AND/OR A

“MISCARRIAGE OF JUSTICE” EXCUSING

DORE CC bl wa dna dees dc dacesoces 14

A Procedural Default Analysis is

I ee 14

B Petitioner Has Shown “Cause and

Il. THAT PETITIONER WAS CONVICTED BY

MEANS OF A GUILTY PLEA DOES NOT

AFFECT THE VIABILITY OF HIS CLAIM ....

A. A Conviction and Sentence Based on

Even a Valid Guilty Plea Should Be

Vacated If Based on Conduct That the

Law Does Not Make Criminal ..........

B. Petitioner's Guilty Plea Was Invalid .....

ee See. Ok eo leeneceenewes

iv

TABLE OF AUTHORITIES

CASES

Page

Abreu v. United States, 911 F. Supp. 203

Gee We Ba Ge dive scent ccSeedeh caccenccs 22

Adams v. United States ex rel. McCann,

POF WEE AbUENede kboeecccnscchcst vice 16

Bailey v. United States, 516 U.S. 137,

ick CUES Sa passim

Blackledge v. Perry, 417 U.S. 21 (1974) ........ 24, 25, 26

Bordenkircher v. Hayes, 434 U.S. 357 (1978) .......... 27

Borre v. United States, 940 F.2d 215 (7th Cir. 1991) .... 8

Brady v. United States, 397 U.S. 742 (1970) ........ 25, 29

Callanan v. United States, 881 F.2d 229

(6th Cir. 1989), cert. denied, 494 U.S. 1083 (1990) .... 8

Coleman v. Thompson, 501 U.S. 722 (1991) .......... 15

Dalton v. United States, 862 F.2d 1307

RE ee ae 8, 21

Davis v. United States, 411 U.S. 233 (1973), ....... 15, 16

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

Engle v. Isaac, 456 U.S. 107 (1982) ........ 2... eee. 21

v

English v. United States, 42 F 34 473

(9th Cir. 1994) .....---eeeeerecer ses esee 15, 20

Estelle v. Gamble, 429 U.S. 97 (1976) ....---eeeee ees 28

Estep v. United States, 327 U.S. 114 (1946) ...-----+>- 17

Ex Parte Lange, 85 U.S. (18 Wall.) 163 (1874) ...----- 27

Gilmore v. Taylor, 508 U.S. 333 (1993) .----++++2+5 13

Gutknecht v. United States, 396 U.S. 295 (1970) ....---- 6

In re Hanserd, 123 F.3d 922 (6th Cir. ee 9

Henderson v. Morgan, 426 U.S. 637 (1976) ...----- 28, 29

Hill y. United States, 368 U.S. 424 (1962) ...------>- 1,9

Janniello v. United States, 10 F.3d 59 (2d Cir. 1993) ..-- 8

Ingber v. Enzor, 841 F.2d 450 (2d Cir. 1988) -------- 8, 20

Jackson v. Virginia, 443 U.S. 307 (1979) ...--+-+++-+: 27

m8. ot5as 1997) a ls Ce saotocnese 14, 19, 20

Johnson v. United States, 805 F.2d 1284 a

(Tih Cie. 1986) .....-00eeeeeeece esse eeecenee:

Kercheval v. United States, 274 U.S. 220 (1927) ..----- 29

Ex Parte Lange, 85 U.S. (18 Wall.) 163 (1874) ....---- 27

Lee v. United States, 113 F.3d 73 (7th Cir. 1997) .... 9,26

vi

Mackey v. United States, 401 U.S. 667 (1971) ...... 12, 13

Marshall v. Lonberger, 459 U.S. 422 (1983) .......... 28

McCarthy v. United States, 394 U.S. 459 (1969) ....... 28

McMann v. Richardson, 397 U.S. 759 (1970) .......... 25

McNally v. United States, 483 U.S. 350 (1987) ....... 8,18

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

Gao 0 db 0 cho dswe des copesccecdape 24, 25, 26

Mossew v. United States, 266 F. 18 (2d Cir. 1920) ...... 27

North Carolina v. Alford, 400 U.S. 25 (1970) .......... 29

Parker v. North Carolina, 397 U.S. 790 (1970) ........ 25

Peck v. United States, 73 F.3d 1220 (2d Cir. 1995),

vacated on other grounds, 106 F.3d 450

PE BEET 6 vcccueckctnen Peds 60 cedtvcevrcees 8

Penry v. Lynaugh, 492 U.S. 302 (1989) .............. 12

Price v. United States, 959 F. Supp. 310

EERO |S 13

Ratzlaf v. United States, 510 U.S. 135 (1994) ........... 8

Reed v. Farley, 512 U.S. 339 (1994) ............... 9,22

Reed v. Ross, 468 U.S. 1 (1984) ..............055. 3,21

Rivers v. Roadway Express, Inc.,

SES WU ED bs derecc css ccessvceverte’ ba 10

Vii

Robinson v. California, 370 U.S. 660 (1962) .- +--+ 9" 28

Robinson v. Neil, 409 U.S. 505 (1973) ----+e0000t' 11,12

Sanders v. United States, 373 US. 1 (1963) -------°°"" 17

Santobello v. New York, 404 U.S. 257 (1971) .-----+9°° 30

Schlup v. Delo, 513 U.S. 298 (1995) ..---eeeeereee 3,22

Smith v. Murray, 477 U.S. 527 (1986) .---- e208 21

Smith v. United States, 327 U.S. 114 (1946) ..----008° 17

y. United States, 113 F.34 651 aa

(Tth Cir. 1997).-----0eerr reese

Stone v. Powell, 428 U.S. 465 (1976) ------- 0 19

y. United States, 516 F.2d ae ;

(Nth Cir. 1975) ------enerereeee

Sunal v. Large, 332 US. 174 (1947) «-----**°° 16, 17, 18,

Teague V Lane, 489 U.S. 288 (1989) <a

United States v. Addonizio,

eo. ova gubocccunvenhe 10, 16, 20

United States v. Andrade, 83 F.3d 729

Raha cccsiseerosbecdceccccddcovecces 27

United States v. Barboa, 777 F.2d 1420

COR EN bdo r bc bee sb bnddbvcscdbasecoess 27

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

Pe SS aR Tn 9, 13, 27

United States v. Briggs, 939 F.2d 222 (Sth Cir. 1991)... . 27

United States v. Broce, 488 U.S. 563 (1989) ..... 4, 23, 24,

25, 26

United States v. Brown, 117 F.3d 471

ED aad bebe dt he 6 os chaceccdcces 8, 29

United States v. Caperell, 938 F.2d 975

SE ED cis SUROR En ens Uh di beks oscccecdces 27

United States v. Corsentino, 685 F.2d 48

CE? + 056 snteeaa kbebde edd so 6ce¢enee 15

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

GE BE dsb dn kb cb nde bambeee de 6c codeccée 13

United States v. Dashney, 52 F.3d 298

I nck bes 6 kadtedndedsdsccercocotve 8

United States v. Farley, No. 96-3002, 1996 U.S. App.

LEXIS 24208 (6th Cir. Aug. 27, 1996) (per curiam) ... 27

United States v. Fox, 454 F.2d 593 (9th Cir. 1971) ..... 6,7

ix

States v. Frady, 456 USS. 152 (1982) -----

Oth Cir.),

- Holland, 116 F.3d 1353 (1 }

eT a "66 US.L.W. 3262 (US. 1997) -----++*° %

United

United States v. Maze, 414 US. 395 (1974) «---s0 0°

United States v. McKinney, 79 F.3d 105

(8th Cir 1996), vacated, 117 S. Ct. 1816 (1997) ------ 14

United States v. McPhail, 112 F.34 197 —

(Sth Cir. 1997) .---0eserrereeee

States v. Mims, 440 F.2d 643 3

(8th Cir. 1971) (per curiam) .----+----":

x

United States v. Shelton, 848 F.2d 1485

A EEE AT ee s

United States v. Sood, 969 F.2d 774 (9th Cir. 1992) ...... 8

United States v. Timmreck, 441 U.& 780 (1979) ........ 9

United States v. Travers, 514 F.2d 1171 (2d Cir. 1974) ...8

United States v. Tucker, 404 U.S. 443 (1972) ........... 9

United States v. Ulland, 638 F.2d 1150

(Sth Cir. 1981) (per curiam) .........cccccccceeees 16

United States v. Young, 927 F.2d 1060 (8th Cir.),

cert. denied, 502 U.S. 943 (1991) ............20005. 16

United States v. Young-Bey, 893 F.2d 178

Pt ivi dent cues eibedabesteecs cs 18

Vachon v. New Hampshire, 414 U.S. 478 (1974)

RS are ee oS Pee 27

Wainwright v. Sykes, 433 U.S. 72 (1977) ............. 15

In re Winship, 397 U.S. 358 (1970) .............6.045. 27

STATUTES AND RULES

Pe ED occa cecdartodunwhesssneees passim

EE nce c ¢ennenss 6cekvenenedeiabenen 11

EE ca cian d ch snnekes eueue bas aie passim

Federal Rule of Criminal Procedure 12(b)(2) .......... 16

xi

Se nacie 15

Federal Rule of Criminal Procedure ST

—s 1

Supreme Court Rule 37.3..-eeererrrrn

Shean 1

Supreme Court Rule 37.6...---0eeeerrrrn

MISCELLANEOUS

HERTZ, FEDERAL

JAMES S. LIEBMAN & RANDY

yore a eeeeees 13

(2d ed. 1994) ..--eeerrreree

i i Bailey v. United States,

Brief for the United States,

516 U.S. 137, 116 S. Ct. 501 (1995) ,

(Nos. 94-7448 mn GA-TABD) oc occcsccsscrsere

(FAM ducts research and engages in advocacy Tesarene

mandatory minimum

laws, of which 18 U.S.C. § 924(c) is a prominent example, are

expensive and inefficient, perpetuate unwarranted and unjust

sentencing disparities, and transfer the sentencing function

from the judiciary to the prosecution. Founded in 1991,

FAMM has 33,103 members nationwide with 36 chapters in 26

states and the District of Col bia. FAMM does not contend

that crime should go unpunished, but that the punishment

should fit the crime.

SUMMARY OF ARGUMENT

This case presents a question of exceptional important

to the administration of criminal justice— a federal

prisoner must continue to serve a five-year mandatory prison

term for conduct that subsequent legal developments establish

: -, escandance with Supreme Court Rule 37.6, amici curiae TePresent oe

cn eer than counsel for amici authored this bref in whls © See

and no person of entity, other than amici, has made 8 j

to the preparation or submission of this brief. The petitioner and respondent

2

does not violate the statute under which he was convicted.

Fundamental principles of justice and established precedent

addressing the availability of collateral relief confirm that the

prisoner’s continued incarceration in such circumstances is

insupportable.

At the time he pleaded guilty to the charge of “use” of

a firearm during and in relation to a drug trafficking crime in

violation of 18 U.S.C. § 924(c), petitioner Kenneth Bousley,

his counsel, the government, and the district court labored

under the misimpression that the possession, storage, and

availability of firearms in his bedroom near illicit drugs was

sufficient to constitute “use” under the statute. In Bailey v.

United States, 516 U.S. 137, 116 S. Ct. 501, 506 (1995), this

Court unanimously rejected that broad reading of the statute

and held instead that the government must prove “active

employment” of the firearm. In so ruling, the Court broke

sharply with uniform case law in the courts of appeals. The

existing record establishes on its face that there was no

evidence of active employment of a gun in this case and that

Bousley is innocent of the § 924(c) offense. Because his

conviction and sentence were “imposed in violation of the

Constitution or laws of the United States,” 28 U.S.C. § 2255,

collateral relief is both available and appropriate.

As this Court declared in Davis v. United States, 417

U.S. 333, 346 (1974), an intervening interpretation of

substantive law that establishes that a federal prisoner’s

“conviction and punishment are for an act that the law does not

make criminal,” is retroactively available to the prisoner on

collateral review, because such a circumstance “inherently

results in a complete miscarriage of justice.” The retroactivity

doctrine announced by Teague v. Lane, 489 U.S. 288 (1989)

(plurality opinion), does nothing to alter the result or analysis

dictated by Davis.

The court of appeals erred in holding that Bousley’s

§ 2255 motion was procedurally barred because of his failure

to attack the validity of his § 924(c) conviction and sentence on

or ey

i had defaulted his claim, Bousle:

res se same Sebel rule in failing to ep

§ 924(c) conviction on appeal. Bousley ose ha pe

opportunity to challenge his § 924(c) convi direct

Bailey. To require that to avoid a procedural bar, a prisoner

A ‘ by

i i ents explicitly rejected

a ain 9 ary ee aoe frivolous appeals

poe laundry lists of futile claims. ie

Even if his Bailey claim were subject A ap —

default, Bousley has shown both cause and prey pore

: alternative, @ miscarriage of justice justifying oe

pe on the merits of his Bailey claim. Under Ree v. ~ \

468 U.S. 1 (1984), 4 petitioner establishes pouse cn

‘iral default where, as here, a claim aes ot

legal basis is not reasonably available to — hoe

7 the government concedes, the Eighth |

ee i fll y Bousley was entitled to

a failing to consid is within the ‘narrow class of

pop licating a fundamental miscarriage of eaves’ '

Schhe ® Delo, 513 US. 298, 315 (1995) (citation omitted)

Bousley’s is an “extraordinary Case, id. at pepe ar bay

“has probably resulted in the conviction 7

_— aaa Id. at 327 (quoting Murray v. Carrier,

US. 478, 496 (1986).

firearm i for denying him relief.

under § 924(c) 1s no basis -

a firearm Whe view of the court of appeals, by pleading evil

the petitioner did not “waive” his right to R, — ~

conviction on collateral paca are = nance oto

existing record, a prisoner asserts

4

court at all” upon the charge to which he pleaded guilty, even

a valid guilty plea will not stand in the way of his obtaining

collateral relief. United States v. Broce, 488 U.S. 563, 575

(1989). In any event, Bousley’s guilty plea was not valid.

Because he mistakenly believed that he could be convicted of

“use” of a firearm under § 924(c) even though he had not

actively employed a firearm, his guilty plea was not knowing

and voluntary and cannot withstand a collateral attack.

For this Court to deny prisoners on collateral review the

right to avail themselves of Bailey because of the happenstance

that their convictions had become final before Bailey was

decided—at a time when settled circuit precedent prevented

them from urging on direct appeal the construction of § 924(c)

ultimately adopted by this Court—would be both unduly

formalistic and manifestly unjust.

ARGUMENT

I. PURSUANT TO 28 U.S.C. § 2255, PETITIONER IS

ENTITLED TO VACATUR OF _ HIS

CONVICTION AND SENTENCE IMPOSED

UNDER 18 U.S.C. § 924(C), AS THEY WERE

BASED ON CONDUCT THAT IS NOT A CRIME.

Petitioner Kenneth Bousley stands convicted and is now

serving a mandatory five-year sentence for an act that is not,

according to this Court, a crime. Charged with “use” of a

firearm during and in relation to a drug trafficking crime in

violation of 18 U.S.C. § 924(c), Superseding Indictment, Count

II, Bousley pleaded guilty to that count on the basis of his mere

“ownership and possession” of firearms stored in his bedroom

near the methamphetamine that he was charged with possessing

with the intent to distribute. Plea Agreement, at 2; Transcript

of Change of Plea Hearing, dated June 15, 1990, at 13

(petitioner’s statement that he understood he was charged with

“possession of a firearm”), 15. Five years later, in Bailey v.

United States, 516 U.S. 137, 116 S. Ct. 501 (1995), this Court

unanimously held that such conduct does not violate § 924(c).

i ; drug offense, is

a firearm to a person who commie © oe o£ § 924(c).

insufficient constitute . ! by

Bailey, 116 S. Ct. at 506. To obtain a valid conviction

aspect of the statute.

ins that nae) were imposed in violation of the "aie

i ” because, under

of the Unieres more than mere ownership and possession,

Apply Retroactively 00 Collateral Review.

i In Davis v. United States, 417 U.S. 333, 346-47

interpretation OF punishment are for conduct that Is no

. .’ conviction and “fi jamental

arereahy such a © it con momplete miscarriage of

defect” that inherently acm lief. By ruling in

‘ sctice” and justifies the of collateral re . BY

— of a prisoner whose conviction had ing change in

, also held that such an intervening

6

a physical examination. When he failed to appear, the board

declared him a delinquent and subsequently accelerated his

induction into the Armed Forces. Davis again failed to report,

and as a result, was prosecuted and convicted for failure to

comply with the Selective Service Act. Jd at 335-36. While

Davis's direct appeal was pending, this Court decided

Gutknecht v. United States, 396 U.S. 295 (1970), which held

that the Selective Service regulations that accelerated the

induction of delinquent registrants were punitive in nature and

without legislative authorization. Davis, 417 U.S. at 337-38.

After Gutknecht, the Ninth Circuit remanded Davis’ s

case to the district court for reconsideration, but the lower

Davis's induction had not in fact been accelerated because of

his delinquency status. Jd at 338-39. While Davis’s

subsequent petition for certiorari was pending in this Court, the

Ninth Circuit ruled in United States v. Fox, 454 F.2d 593 (9th

Cir. 1971), that in light of Gutknecht, a registrant in the same

position as Davis had been subject to the forbidden accelerated

induction as a matter of law. This Court denied Davis’s

petition for certiorari. Davis, 417 U.S. at 340.

Thereafter, Davis filed a § 2255 motion in which he

contended that the Fox decision changed the law of the Ninth

Circuit after the affirmance of his conviction. This Court

granted review after the court of appeals held that the decision

on Davis’s direct appeal constituted “the law of the case” and

that Davis was therefore not entitled to avail himself of the

change in law on collateral review. Jd at 341-42.

The Davis Court rejected the Ninth Circuit’s reliance on

the “law of the case,” emphasizing that even when a legal issue

raised in a § 2255 motion has been determined against the

petitioner on a prior application or on direct appeal, the

petitioner may nonetheless be entitled to relief “upon showing

an intervening change in the law.” Jd at 342 (quoting Sanders

v. United States, 373 U.S. 1, 17 (1963)). Instead of relying on

the finality of the conviction as reason to deny retroactive

afforded by the writ of habeas corpus is apparen’.

Davis, 417 U.S. at 346 (quoting Hill, 368 U.S. 424,

, whether Fox in fact

The Court did not address oe

established that Davis's induction order was invalid, but hod

if it did, then Davis’s “conviction and punishment

circumstance ‘inherently results in a complete miscarriage of

exceptional

” id. at 347

ief under § 2255.” Id. at 346-47; accord ia

— ing in part and dissenting in part)

justice,” a predicament that presents exceptic j .

meriting collateral relief under § 2255. eee

With remarkable unanimity the courts of =

puted 0 Sob oteeediatonted mame

the courts of appeals) narrowed the reach of federal —

statutes under which petitioners had been convi a.

was Clear that the conduct underlying a conviction did not, in

fact, viclate the statute in question.? Consistent with that

long-standing approach, the courts of appeals uniformly have

accepted that a federal prisoner whose § 924(c) convicti

became final before Bailey was decided asserts a cognizable

claim for collateral relief if his conviction for “use” of a firearm

was based on conduct that did not constitute a crime under

? For cases granting petitioners the benefit on collateral review of Ratzlaf

v. United States, 510 U.S. 135 (1994) (holding that knowledge of illegality

is an essential element of the crime of currency structuring), see, e.g.,

United States v. Brown, 117 F.3d 471 (11th Cir. 1997); Peck v. United

States, 73 F.3d 1220 (2d Cir. 1995), vacated on other grounds, 106 F.3d

450 (2d Cir. 1997); United States v. Dashney, 52 F.3d 298 (10th Cir. 1995).

For decisions applying McNally v. United States, 483 U.S. 350

(1987) (holding that the federal mail-fraud statute protects property rights,

not the intangible right of the citizenry to good government), see, e.g,

Borre v. United States, 940 F.2d 215 (7th Cir. 1991); Callanan v. United

States, 881 F.2d 229 (6th Cir. 1989), cert. denied, 494 U.S. 1083 (1990);

United States v. Mitchell, 867 F.2d 1232 (9th Cir. 1989) (per curiam);

Dalton v. United States,862 F.2d 1307 (8th Cir. 1988); United States v.

Mandel, 862 F 2d 1067 (4th Cir. 1988), cert. denied, 491 U.S. 906 (1989),

United States v. Shelton, 848 F 2d 1485 (10th Cir. 1988) (en banc); Jngber

v. Enzor, 841 F.2d 450 (2d Cir. 1988).

For cases applying United States v. Maze, 414 U.S. 395 (1974)

(holding that the mail-fraud statute did not reach mailings subsequent to the

use of stolen or counterfeit credit cards), see, e.g., Strauss v. United States,

516 F.2d 980 (7th Cir. 1975); United States v. Travers, $14 F.2d 1171 (2d

Cir. 1974), and for those applying other intervening decisions narrowing the

substantive reach of federal criminal statutes, see, e.g, Janniello v. United

States, 10 F.3d 59 (2d Cir. 1993); United States v. Sood, 969 F.2d 774 (9th

Cir. 1992), United States v. McClelland, 941 F.2d 999 (9th Cir. 1991).

} ~

112 F.3d 197 (Sth Cir. 1997), United States v. Barnhardt, 93 F.3d 706 (

— judice); United

object trial date when set and suffered no prejudice

pn ~ edhe A US. 780, 784-85 (1979) (§ 2255 relief unavailable

a aie dy a technical violation of Federal Rule of Criminal Proce™utt .

other aggravating Ci !

y. Tucker, 404 U.S. 443, 447 (1972) (ordering resentencing under § 2

, permit trial judge to consider effect of the invalidity of pexincttt o

Ten convictions, because “we deal here, not with a sentence impossd

10

This Court’s decision in United States v. Addonizio, 442

U.S. 178 (1979), provides helpful guidance regarding when a

subsequent change in federal law will be deemed sufficiently

fundamental to justify collateral relief. In that case, three

prisoners alleged that a change in the policies of the United

States Parole Commission prolonged their imprisonment

beyond the period intended by the sentencing judge. In each

case, the judge imposed a sentence based in part on an

understanding—subsequently rendered incorrect—that the

prisoner would be released as soon as he became eligible for

parole. Jd at 180-81.

In holding that the change in parole policy was not

sufficiently fundamental to merit collateral relief under § 2255,

the Court reasoned that there was “no claim of a constitutional

violation; the sentence imposed was within the statutory limits;

and the proceeding was not infected with any error of fact or

law of the ‘fundamental’ character that renders the entire

proceeding irregular and invalid.” Jd at 186. Whereas the

change in Parole Commission policies in Addonizio “did not

affect the lawfulness of the judgment itself—then or now,” id.

at 187, in Davis, by contrast, the subsequent development at

issue “was a change in the substantive law that established that

the conduct for which petitioner had been convicted and

sentenced was lawful. To have refused to vacate his sentence

would surely have been a ‘complete miscarriage of justice,’

since the conviction and sentence were no longer lawful.”

Addonizio, 442 U.S. at 186-87.

The same can be said for the judgment in this case.

Both “then and now,” Bousley’s § 924(c) conviction was

unlawful because, as this Court held in Bailey, the conduct for

which he had been convicted—the storage of a firearm near

illicit drugs—did not violate § 924(c). Although this Court’s

decision in Bailey was not announced until after Bousley’s

conviction became final, that decision spoke authoritatively as

to what “use” under § 924(c) always properly meant. See

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

rendering his conviction and sentence

inte aiid.” Bousley’s conviction and sentence

under § 924(c) must be vacated.

B. Teague v. Lane is Inapposite.

retrospectively. Teague is inapposite for several —

sae relief

doctrine applies generally to — seeking -

pursuant to § 2255, it does not limit the availability -

collateral review of i substantive interpretations

federal criminal statutes. Teague and its forerunners restricts

the retroactive enforceability only of “new constitutions’ ise

of criminal procedure,” Id. at 310 (emphasis added), not n

“rules,” or interpretations, ineati the substance of crimings

federal statutes. See Robinson v. Neil, 409 U.S. 505, 508

for the Petitioner

the circuits on that issue). But see Brief

<= Patties fo Writ of Certiorari, at i (Questions Presented).

12

(1973) (distinguishing between substanti proced

73 ut tive and ural

decisions because “[g]uarantees that do not relate to these

proced ural rules [procedural rights and methods of conducting

trials} Cannot, for retroactivity purposes, be lumped

ae together in terms of analysis”); Mackey v. United

a 401 U.S. 667, 692-93 (1971) (Harlan, J.) (distinguishing

tween ‘Procedural” and “substanti.e” rules for purposes of

retroactivity analysis).

The rationale for the distinction is straightforward: w;

the exception of “watershed rules of criminal ee ” a

as the ight to counsel, which “significantly improve the

ante a -finding procedures, ” Teague, 489 U.S. at 312,

— €s governing “the use of evidence or. . . a

oe mode of trial, Robinson, 409 U.S. at 508, affect only

y the Integrity of the fact-finding process, the

fundamental fairness of the trial, and the reliability of any

— conviction. New judicial constructions of the

substance of federal criminal statutes, however, are of

different order of importance. A clear understanding of bs

eeuct Prohibited by a penal statute is essential to fair and

vans a law enforcement. Rulings such as Bailey that narrow

a dragneh each aa ral Statutes serve as a critical curb agains

- —Such as was created in the overzealous prosecution

) § 924(c) offenses—that ensnares the innocent alongside the

guilty. In contrast to convictions obtained before a new rule of

a ! procedure has been announced, convictions predicated

misunderstanding of the scope of a federal criminal statute

are not only unreliable—they are untenable.

Finally, even if the Te i

’ ague doctrine applied, Bail,

rem would apply to federal ar relief

heir sentences in § 2255 motions. Under the first Teague

exception, a new rule must be applied retroactively “if it places

— kinds of primary, private individual conduct beyond

power of the criminal law-making authority to proscribe sd

Teague, 489 U.S. at 307 (quoting Mackey, 401 US. at 692

(Harlan, J.)); see also Penry v. Lynaugh, 492 U.S. 302, 331

13

(1989).°

The relevant precedent in deciding whether to afford

retroactive application to federal prisoners seeking the benefit

of a new interpretation of substantive criminal law under

§ 2255 is not Teague, but Davis v. United States, 417 US. 333,

344 (1974). If the intervening decision demonstrates that the

prisoner’s conviction and punishment are founded on a

“fundamental defect” rising to the level of a “complete

miscarriage of justice,” the retroactivity inquiry is at an end,

and the prisoner is entitled to avail himself of the new

substantive decision. Teague did nothing to undermine the

continued vitality of this Court’s decision in Davis. For that

reason, the courts of appeals have adopted the distinction

between new substantive and procedural decisions,

unanimously agreeing that the Bailey decision applies

retroactively to § 2255 motions.’

. in explaining the first exception in Mackey, Justice Harlan stated that

“[tJhere is little societal interest in permitting the criminal process to rest at

a point where it ought properly never to repose,” Mackey, 401 U.S. at 693.

“In general, the first exception may be interpreted as distinguishing new

rules of substantive criminal law, which always apply retroactively, from

new rules of criminal procedure, which generally do not apply retroactively

in cases that were final as of the time the new rule was announced.” 2

JAMES S. LIEBMAN & RANDY HERTZ, FEDERAL HABEAS CORPUS PRACTICE

AND PROCEDURE § 25.7, at 794 (2d ed. 1994); cf Gilmore v. Taylor, 508

US. 333, 345 (1993) (new rule did not satisfy the first exception because

it did not “decriminalize” any class of conduct).

7 See, e.g., Triestman v. United States, 124 F.3d 361, 1997 U.S. App.

LEXIS 22752, at *20 n.7 (2d Cir. 1997); United States v. Barnhardt, 93

F.3d 706, 709 (10th Cir. 1996); Stanback v. United States, 113 F.3d 651,

654 n.2 (7th Cir. 1997); United States v. McPhail, 112 F.3d 197, 199 (Sth

Cir. 1997); see also United States v. Cota-Loaiza, 936 F. Supp. 751, 753-54

(D. Colo. 1996) (collecting cases). But see Price v. United States, 959 P.

Supp. 310, 315 (E.D. Va. 1997).

14

II. PETITIONER’S BAILEY CLAIM IS NOT

PROCEDURALLY BARRED, BUT IF IT WERE,

HE COULD DEMONSTRATE “CAUSE” AND

“PREJUDICE” AND/OR A “MISCARRIAGE OF

JUSTICE” EXCUSING ANY DEFAULT.

The court of appeals erred in holding that petitioner

Kenneth Bousley’s § 2255 motion was procedurally barred

because of his failure to attack the validity of his § 924(c)

conviction and sentence on direct appeal. See Pet. App. 3.

A. Procedural Default Analysis is Inapplicable.

As a preliminary matter, procedural default analysis

does not apply when a defendant asserts a claim for the first

time in a § 2255 motion, unless a specific applicable procedural

rule required the defendant to raise that claim at an earlier point

in time. There was no such procedural rule requiring Bousley

to challenge on appeal his conviction for “use” of a firearm

under § 924(c), years before he had any legal basis for making

that challenge. Indeed, such a procedural requirement would

be misplaced when, as here, the basis urged for vacating a

conviction and sentence was specifically precluded by

controlling, crystallized case law at the time the conviction

became final. Under such circumstances, in which a prisoner

never had a full and fair opportunity to litigate his claim prior

to filing his § 2255 motion, the claim is not procedurally

barred.

. The court of appeals relied in part on a faulty premise—its decision in

United States v. McKinney, 79 F.3d 105, 109 (8th Cir. 1996) (holding on

direct appeal that the defendant had waived his right to invoke Bailey

because he did not preserve the issue at trial), vacated, 117 S. Ct. 1816

(1997), which it cited for the proposition that “Bailey does not resurrect a

challenge to a section 924(c) conviction that has been

defaulted.” Pet. App. 3 & n.2. This Court vacated that decision and

remanded for reconsideration in light of Johnson v. United States, 117 S.

Ct. 1544 (1997), and on remand, the Eighth Circuit reversed McKinney's

§ 924(c) conviction. 120 F.3d 132 (8th Cir. 1997).

15

iction on direct appeal under the peculiar

Ass Fo ces presented here. As this Court explained in

“ judice”

and Davis make clear, the “cause and pre)

tan A applies only to cases in which the petitioner has

defaulted a claim by failing to adhere to a particular procedural

rule in place at the time of his conviction.

In Frady, for example, the petitioner alleged that the

trial court | rycen instructed the jury. He mo ee

claim for the first time in his § 2255 motion. ree 2A

had failed to comply with Rule 30 of the Federal ‘ules

Criminal Procedure, which required a party to rake ily

objections to jury instructions “before the jury sewed

consider its verdict,” this Court held that he had procedt y

defaulted his claim. See Frady, 456 U.S. at 162-64. Similarly,

° ji States, 42 F.3d 473, 474, 489-479 (9th Cir. 1994)

in a rn edt ied st

y. United States, 490 U.S. 858 (1 raising he

cus aties eaten, because “there was no rule requiring *he poteensss

to raise their Gomez claim on direct appeal"); United States ¥. ©OFSS0A

685 F.2d 48, 50 (2d Cir. 1982) (finding no procedural default

rule of federal procedure obliges a defendant to make a contemporaneous

objection when a prosecutor violates the terms of a plea agreement”).

16

in Davis, the prisoner raised for the first time in his § 2255

motion a claim of unconstitutional discrimination in the

composition of the grand jury that indicted him. Because

Federal Rule of Criminal Procedure 12(b)(2) required that

“objections based on defects in the institution of the

prosecution or in the indictment” must be raised “by motion

before trial” upon penalty of waiver, the Court held that

Davis's claim was procedurally barred, absent a showing of

cause and actual prejudice. Davis, 411 U.S. at 236-37.

By contrast, no procedural rule required Bousley to

attack his conviction and sentence under § 924(c) on direct

appeal years before Bailey was decided. Indeed, in light of the

fact that Bousley pleaded guilty to the § 924(c) offense, Eighth

Circuit precedent suggested the opposite: In the Eighth Circuit,

claims challenging the voluntariness of a guilty plea, like

claims of ineffective assistance of counsel, must first be

presented to the district court and are not cognizable on direct

appeal, because of the possibility that such claims will require

the development of facts outside the record.'® That Bousley’s

§ 2255 motion attacked the knowing and voluntary nature of

his guilty plea is all the more reason for this Court to decline to

find that he violated an applicable procedural rule.

a Nonetheless, it is conventional wisdom that

“[s]o far as convictions obtained in the federal courts are

concerned, the general rule is that the writ of habeas corpus

will not be allowed to do service for an appeal.” Sunal v.

Large, 332 U.S. 174, 178 (1947); see also Frady, 456 U.S. at

165; United States v. Addonizio, 442 U.S. 178, 184 (1979);

Adams v. United States ex rel. McCann, 317 U.S. 269, 274

(1942). These decisions, however, do not demand that Bousley

° See, e.g., United States v. Young, 927 F.2d 1060, 1061 (8th Cir.), cert

denied, 502 U.S. 943 (1991); United States v. Murphy, 899 F.2d 714, 716

(8th Cir. 1990); United States v. Ulland, 638 F.2d 1150, 1150 (8th Cir.

1981) (per curiam); United States v. Mims, 440 F.2d 643, 644 (8th Cir.

1971) (per curiam).

17

icate subsequent changes in the law that constitute a

Soe anaes from precedent settled during the time for

taking a direct appeal.

United States and Smith v. United States, 327 US. 114 (1946),

barred because “[a]ppeals could have been taken in these cases,

cere ce Sunal, 332 U.S. at 177 (footnote omitted).

The petitioners argued that since the state of the law made the

seem “futile,” it would be unfair to deny the pentane

relief because of their failure to appeal. peeaeyiaten pe

argument, but only because the Court was not convinced

an appeal raising the arguments that ultimately prevailed in the

subsequent Supreme Court decisions would, in fact, have been

futile. At the time the defendants in Sunal were convicted,

Estep and Smith were pending before the appellate —

indeed, the same counsel represented the defendants in —

as in Estep and Smith. “The samo road was open wo Sessa se

Kulick as the one Smith and Estep took.” /d at 181.

Court stressed: “The case, therefore, is not one where the .

was changed after the time for appeal had expired. I .

(emphasis added). “It is rather a situation where at the time o

the convictions the definitive ruling on the question of law had

not crystallized.” Id.; cf Sanders v. United States, 373 U.S. 1,

17 (1963).

’s plight at the time he was convicted and

Pe. rag AS 8 entirely different from that of the

prisoners in Sunal. For him, controlling law had crystallized, .

establishing beyond peradventure (erroneously, as it tums out)

that possession of a firearm was sufficient to constitute :

under § 924(c) where the firearm was “present and “available

18

to the defendant to protect his drug enterprise.'' In fact, as the

Solicitor General pointed out in the government’s brief

submitted in Bailey, “all” of the courts of appeals routinely

affirmed convictions under § 924(c)(1) without proof of

“actively using the firearm in any way.” Brief for the United

States, at 16 n.4, Bailey v. United States, 516 U.S. 137, 116 S.

Ct. 501 (1995) (Nos. 94-7448 and 94-7492); see also id. at 32

& n.12. Thus, the Sunal bar on raising claims in a § 2255

motion that could have been raised on direct appeal, does not

apply.’

3. To apply procedural default analysis to a

petitioner in Bousley’s predicament not only would be unfair

to Bousley, who surely cannot be faulted for failing to predict

that a solid wall of circuit authority would be overturned by this

Court, but also unwise inasmuch as it would cause an

unnecessary drain on judicial resources. As noted above, if in

1990, Bousley had challenged on appeal his conviction and

sentence on the ground that there was no evidence of “active

employment” of a firearm, his argument would have been

"' See, e.g., United States v. Young-Bey, 893 F.2d 178, 181 (8th Cir. 1990)

(finding it sufficient that the firearms were “readily accessible” to protect

and facilitate the drug enterprise); United States v. La Guardia, 774 F.2d

317, 321 (8th Cir. 1985) (“Section 924(c\1) reaches the possession of a

firearm which in any manner facilitates the execution of a felony”; “[t}he

presence and availability in light of the evident need demonstrates the use

of a firearm to commit the felony.”).

‘2 The Sunal rule does apply, however, to a defendant who had the

Opportunity to raise Bailey before his conviction became final, but failed to

do so. Similarly, the Sunal rule may apply when a federal prisoner raises

a claim for the first time in a § 2255 motion where the law had not yet

crystallized to the point that advancing his claim on appeal would have been

an exercise in futility. See, e.g, United States v. Osser, 864 F.2d 1056.

1061 (3d Cir. 1988) (denying writ of error coram nobis urging application

of McNally because at the time of Osser’s trial in 1972, there was no

“entrenched precedent” that would have rendered a direct appeal on the

mail-fraud point futile).

19

branded frivolous, as it was clearly precluded by a long line of

Eighth Circuit precedent. That Bousley had pleaded guilty to

the § 924(c) offense would have made any such challeng =

appeal all the more untenable before Bailey was decided. ‘or

these reasons, Bousley did not have a full and fair opportunity

to litigate his challenge to his § 924(c) conviction. Cf Stone v.

Powell, 428 U.S. 465 (1976).

To hold that Bousley nonetheless was required to

some _ one of those claims might prove meritorious as @

ee Te ccoratiete’ change ia em. That would be a

ision i United

This Court’s recent decision in Johnson v.

States, 117 S. Ct. 1544 (1997), albeit a plain-error case, lends

the

intless on direct appeal. In Johnson, '

government argued that for an error to be deemed “plain or

“obvious,” for of the second prong of the plain-error

government contended, the defendant should have objected at

Bove the court's deciding the issue of materiality, even

though near-uniform precedent both from the Supreme Cour!

and from the courts of appeals had held that course proper. 14,

at 1549. This Court declined to impose such an onerous

re CT ri

20

this—where the law at the time of trial was

settled and clearly contrary to the law at the

time of appeal—it is enough that an error

“plain” at the time of appellate consideration.

Id. By the same token, where, as here, clear and controlling

precedent would preclude a particular claim if raised on appeal,

a petitioner may properly raise the claim based on intervening

law for the first time in a § 2255 motion without fear of

procedural default.’

If anything, this Court has frequently referred to the

Sunal rule that a collateral attack will not “do service for an

appeal,” not so much as justification for denying the petitioner

the right to raise his claim in a § 2255 motion, but as reason for

the stricter standard set for actually obtaining collateral relief.

See, e.g., United States v. Addonizio, 442 U.S. 178, 184 (1979)

(“It has, of course, long been settled law that an error that may

justify reversal on direct appeal will not necessarily support a

collateral attack on a final judgment.”). Regardless of whether

a defendant has defaulted his claim by raising it for the first

time in a § 2255 motion, that claim may not be cognizable

under § 2255 because it is not based on a “fundamental defect”

rising to the level of a “complete miscarriage of justice.” See,

e.g., id. at 186-88; see also Part 1, Section A(2) & cases cited

in n.4, supra. The governing standard for when an i

interpretation of law is sufficiently fundamental to be

cognizable under § 2255 is supplied by Davis v. United States,

417 U.S. 333 (1974), and its progeny, however, and not by the

rules governing procedural default.

° See also Ingber v. Enzor, $41 F.2d 450, 454-55 (2d Cir. 1988) (“Were

we to penalize Ingber for failing to challenge such entrenched precedent, we

would ascribe to attorneys and their clients the power to prognosticate with

greater precision than the judges of this court. Such a rule would encourage

appeal of even well-settled points of law. We see no value in imposing a

responsibility to pursue such a ‘patently futile’ course.”); English v. United

States, 42 F 3d 473, 479 (9th Cir. 1994).

er

21

B. Petitioner Has Shown “Cause and

Prejudice” and a “Miscarriage of Justice.

assuming that his Bailey claim is subject to

al default, Beusley easily satisfies the “cause and

prejudice ” standard for excusing such a default. ——

: blishes the a ; of j

pa 3 nam on the merits of his claim, regardless of the

existence of cause and prejudice.

1. In finding that Bousley failed to show “cause

“cause” for Bousley’s failure to assert on direct appeal that his

conviction was invalid—that is, that Bousley’s Bailey claim

was “so novel that its legal basis [was] not reasonably available

to counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984). Counsel

lacks a “reasonable basis” upon which to develop a legal theory

when, as here, a decision of this Court overtums “a

longstanding and widespread practice to which this Court has

not spoken, but which a near-unanimous body of lower court

authority has expressly approved.” Jd. at 17.

Reed, its own case law to the contrary, e.g., Dalton v. United

States, 862 F.2d 1307, 1310 (8th Cir. 1988), and the substantial

22

body of decisions from other jurisdictions that have relied on

Reed to reach the merits of Bailey claims on collateral review."

Manifestly, Bousley also demonstrates actual prejudice.

His inability to predict this Court’s construction of § 924(c) in

Bailey led directly to his conviction and sentence on a record

that reflected neither the requisite “active employment” of a

firearm nor the required understanding of the elements of the

offense. See United States v. Frady, 456 U.S. 152, 172 (1982)

(explaining that “prejudice” is satisfied if it appears that the

error created a “substantial likelihood” that the result otherwise

would have been different).

2. Alternatively, as the government concedes, the

Eighth Circuit erred in failing to consider whether Bousley was

entitled to collateral review because “he falls within the

‘narrow class of cases . . . implicating a fundamental

miscarriage of justice.” Schlup v. Delo, $13 U.S. 298, 315

(1995) (citation omitted); see Brief for the United States on

Petition for a Writ of Certiorari, at 10-11. To show that his is

the “extraordinary case” meriting relief, Schiup, 513 U.S. at

321, Bousley must show that constitutional error “has probably

resulted in the conviction of one who is actually innocent.” Jd

at 327 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).

Devoid as it is of any suggestion that Bousley actively

employed a firearm, the record in this case demonstrates on its

face that Bousley satisfies this narrow exception. Even the

Eighth Circuit (when ordered to reconsider the matter by this

Court) has recognized, albeit in a plain-error case, that a

conviction predicated on an incorrect understanding of the

definition of “use” under § 924(c) gives rise to a miscarriage of

justice “because it resulted in the conviction of a person who

was not guilty of the crime with which he was charged.”

“See, €.g., Triestman v. United States, 124 F.3d 361, 1997 U.S. App.

LEXIS 22752, at *21 n.8 (2d Cir. 1997); United States v. Holland. 116 F.3d

1353, 1356 (10th Cir.), cert. denied, 66 U.S.L.W. 3262 (U.S. 1997); Abreu

v. United States, 911 F. Supp. 203, 207 (E.D. Va. 1996).

23

United States v. McKinney, 120 F.3d 132 (8th Cir. 1997); see

also Part I, Section A, supra.

Accordingly, Bousley is entitled to consideration on

merits of his § 2255 claim regardless of whether he has shown

sufficient “cause” for any default.

Ill. THAT PETITIONER WAS CONVICTED BY

MEANS OF A GUILTY PLEA DOES NOT

AFFECT THE VIABILITY OF HIS CLAIM.

Finally, the fact that Bousley pleaded guilty to “use” of

s firearm under §924(c) is no basis for denying him reli.

Contrary to the view of the court below, by pleading guilty '

— did not “waive” his right to challenge his convichon

on collateral review. To convict and punish 0 detains f

conduct that is not a crime constitutes a most basic deta! &

countenance, regardless of whether the conviction is procured

by verdict or by plea. Se noned

asserts his right “not to be I os

upon the charge to which he pleaded gully, even valid guilty

plea will not stand in the way of his obtaining relief. In any

event, as Bousley maintains, his guilty plea was not valid.

Conviction and Sentence Based on Even a

= = Guilty Plea Should Be Vacated If

Based on Conduct That the Law Does Not

Make Criminal.

In one of the Court’s more recent prono ca

the availability of collateral relief from a conviction secured by

a gui plea, this Court held that the petitioners were not

itled to assert double jeopardy claims in a collateral

upon . . . . United

relying on the indictments and the existing record.

y bes y. Broce, 488 U.S. 563, 576 (1989). Both the outcome

and reasoning of Broce are readily distinguishable from

*s claim that on the face of the existing record and as

a matter of law, he is innocent of the crime to which he pleaded

24

guilty.

This Court explained in Broce that because “[a

guilty and the ensuing cumision camenthend heft nn

and legal elements necessary to sustain a binding, final

judgment of guilt and a lawful sentence,” a prisoner who seeks

to reopen the proceedings after pleading guilty is “ordinarily”

confined to challenging whether the underlying plea was “both

counseled and voluntary.” Jd. at 569. In this case, however

the Court need not determine that Bousley’s plea was invalid

(because involuntary or uncounseled), as a prerequisite to

granting him collateral relief. Broce did not address the

situation present here, in which a subsequent controlling

decision interpreting the statute of conviction establishes that

on the face of the existing record the defendant's conviction is

for conduct that the law does not make criminal

In both Blackledge v. Perry, 417 U.S.

Menna v. New York, 423 U.S. 61 (1975) (per seth phe Seem

recognized that defendants who plead guilty do not thereby

waive the right to attack their convictions on grounds that

implicate the court’s power to enter the conviction or impose

the sentence in the first place. In Broce, the Court affirmed the

continued validity of that exception. 488 U.S. at 574-76.

Because on the face of the record, the court had no power to

Bar we Conviction or impose the sentence,” id a 69

ey is entitled to vacation of his § 924(c) conviction and

sentence regardless of the validity of the underlying plea.

25

defendants’ claims attacking their guilty pleas in Tollett v.

Henderson, 411 U.S. 258 (1973), and in the Brady trilogy,”

because unlike those defendants, Perry was “not complaining

of ‘antecedent constitutional violations’ or of a ‘deprivation of

constitutional rights that occurred prior to the entry of the

guilty plea.’ Rather, the right that he asserts and that we today

accept is the right not to be haled into court at all upon the

felony charge.” Blackledge, 417 U.S. at 30 (quoting Tollett,

411 U.S. at 266, 267).

Similarly, in Menna, the defendant sought to set aside

his conviction, notwithstanding his guilty plea, because the

Double Jeopardy Clause precluded his conviction altogether.

This Court agreed, ruling that where the government is

precluded from “haling a defendant into court on a charge,

federal law requires that a conviction on that charge be set

aside even if the conviction was entered pursuant to a

counseled plea of guilty.” 423 U.S. at 62. The Court did not

rule that a double jeopardy claim may never be waived, but

held simply “that a plea of guilty to a charge does not waive a

claim that—judged on its face—the charge is one which the

State may not constitutionally prosecute.” /d. at 62 n.2.

A comparison of the results in Menna and Broce is

instructive. In both cases, the defendants pleaded guilty and

thereafter sought to set aside their convictions on double

jeopardy grounds. The defendant in Menna was successful

because the record established on its face that the Double

Jeopardy Clause barred the defendant’s prosecution. As the

Court explained in Broce, in neither Blackledge nor Menna did

the defendants seek further proceedings at which to expand the

record with new evidence. In both cases, the existing record

was sufficient to demonstrate that the defendants’ claims were

meritorious. Broce, 488 U.S. at 575. In Blackledge, “the

'S See Parker v. North Carolina, 397 U.S. 790 (1970); McMann v.

Richardson, 397 U.S. 759 (1970); Brady v. United States, 397 U.S. 742

(1970).

26

concessions implicit in the defendant’s guilty plea were simply

irrelevant,” while in Menna, the indictment was “facially

duplicative” of the earlier offense of which the defendant had

been convicted and sentenced. /d.

By contrast, the petitioners in Broce pleaded guilty to

indictments that on their face described separate conspiracies,

and thus they could not prove their double jeopardy claim “by

relying on those indictments and the existing record.” Jd. at

576. Indeed, the petitioners in Broce could not have prevailed

“without contradicting those indictments,” a course of action

precluded by the admissions inherent in their guilty pleas. Jd

The exception outlined in Broce, Menna, and

Blackledge is fully applicable here. Bousley’s claim rests

entirely on the existing record, chiefly the plea agreement and

plea colloquy, which establish that the plea was based on

Bousley’s ownership and possession of firearms and not on any

evidence of active employment. Thus, there is no need to

conduct further proceedings to develop evidence outside the

record; the record speaks for itself. As in Blackledge, “the

concessions implicit in the defendant’s guilty plea”—i.e., that

Bousley “possessed” the firearms and that they were

“available” —were “simply irrelevant,” Broce, 488 U.S. at 575,

to the question whether Bousley was guilty of having “used” a

firearm in violation of § 924(c).

In pleading guilty, Bousley may have waived a

challenge to the facts themselves, but he did not waive his right

to contest whether those facts were sufficient to constitute a

crime.'* “[N]o matter how validly his factual guilt [was]

established,” Menna, 423 U.S. at 62 n.2, a petitioner’s guilty

plea does not waive a claim that his conviction is

unconstitutional “if the facts he pled guilty to are subsequently

© Lee v. United States, 113 F.3d 73, 75 (7th Cir. 1997) (granting collateral

relief based on Bailey, notwithstanding guilty plea); accord Stanback v.

United States, 113 F.3d 651, 655 (7th Cir. 1997) (same).

27

determined not to be criminal.” United States v. Barnhardt, 93

F.3d 706, 708 (10th Cir. 1996) (Bailey cm may be raised in

a § 2255 motion despite guilty plea - Indeed, the a

courts historically have voided convictions when this type 0

fundamental defect has arisen. See, e.g., Mossew v. United

States, 266 F. 18, 20 (2d Cir. 1920) (“We are of the opinion

that no crime is charged in this indictment. Therefore the

conviction, even though upon plaintiff in error s plea of guilty,

is void.”); cf Ex Parte Lange, 85 U.S. (18 Wall.) 163, a

(1874) (granting writ of habeas corpus where the sentence o

the circuit court was “pronounced without authority”).

. of

Bousley’s continued incarceration for an offense

which he is innocent violates the most basic principles of

substantive'® and procedural"? due process. Incarceration of an

innocent individual likewise constitutes “cruel and unusual

ji 5th Cir. 1996);

17 Accord United States v. Andrade, 83 F.3d 729, 731 (

United rye v. Farley, No. 96-3002, 1996 U.S. App. LEXIS 24208, at *8

(6th Cir. Aug. 27, 1996) (per curiam); see also United States ~se pony a

938 F.2d 975, 977-78 (9th Cir. 1991); United States v. Bar

1420, 1422-23 & n.3 (10th Cir. 1985).

‘8 See United States v. Briggs, 939 F.2d 222, 228 (Sth Cir. 1991) (“Simply

put, to convict someone of a crime on the basis of conduct that does not

constitute the crime offends the basic notions of justice and fair play

embodied in the Constitution.”); Johnson v. United States, 805 F.2d 1284,

1288 (7th Cir. mn Cte pan open aialy Se Oe ae

a crime would seem the quintessence of denying due process of law. . . .

cf. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (“To punish a person

because he has done what the law plainly allows him to do is a due process

violation of the most basic sort . . . .”) (citing North Carolina v. Pearce, 395

U.S. 711, 738 (1969) (Black, J.)).

a Thompson v. City of Louisville, 362 U.S. 199, 206 (1960) (“Just as

‘Convio tena henge aut made would bo cheer Genial f dun recent

so is it a violation of due process to convict and punish a man without

evidence of his guilt”) (footnote and citations omitted); see also Jackson v.

Virginia, 443 U.S. 307 (1979); Vachon v. New Hampshire, 414 U.S. 478,

480 (1974) (per curiam); Jn re Winship, 397 U.S. 358 (1970).

28

punishment” under the Eighth Amendment, for such infliction

of unnecessary and unjustified suffering is “inconsistent with

contemporary standards of decency.””°

The government has no legitimate penal interest in

continuing to imprison Bousley for his conduct, and

accordingly, Bousley’s conviction and sentence under § 924(c)

should be vacated.

B. Petitioner’s Guilty Plea Was Invalid.

Although this Court should remand this case for vacatur

of Bousley’s conviction and sentence without regard to the

validity of his guilty plea, Bousley is correct in suggesting that

his plea in fact was not knowing and voluntary. The

government agrees. See Brief for the United States on Petition

for a Writ of Certiorari, at 8-9.

This Court has explained that a plea may be involuntary

because the defendant “has such an incomplete understanding

of the charge that his plea cannot stand as an intelligent

admission of guilt. Without adequate notice of the nature of

the charge against him, or proof that he in fact understood the

charge, the plea cannot be voluntary in this . . . sense.”

Henderson v. Morgan, 426 U.S. 637, 645 (1976); accor

Marshall v. Lonberger, 459 U.S. 422, 436 (1983); see also

McCarthy v. United States, 394 U.S. 459, 466 (1969) (a guilty

plea cannot be truly voluntary “unless the defendant possesses

an understanding of the law in relation to the facts”).

Accordingly, the voluntariness requirement is not

satisfied unless the defendant has “received ‘real notice of the

true nature of the charge against him.’” Henderson, 426 U.S. at

645 (citation omitted). For that reason, the Court in Henderson

affirmed the grant of a writ of habeas corpus where the

* Estelle v. Gamble, 429 U.S. 97, 103 (1976); see Robinson v. California,

370 U.S. 660, 667 (1962) (“Even one day in prison would be a cruel and

unusual punishment for the ‘crime’ of having a common cold.”).

29

i i death to

itioner had not been informed that intent to cause

victim was an element of the offense. Jd at 645-46.

Similarly, because the plea colloquy reflects that Bousley

incorrectly believed that he could be convicted under § 924(c)

based solely on his “possession” of a weapon, Transcript, at 3,

his guilty plea clearly was not “voluntary in a constitutional

sense,’ Henderson, 426 U.S. at 645, and cannot withstand

collateral attack. See Kercheval v. United States, 274 U.S. 220,

224 (1927) (“[T]he court will vacate a plea of guilty shown to

have been unfairly obtained or given through ignorance, fear or

inadvertence.”).

Of course, not every guilty plea that one on a

isapprehension of the governing law must vacated.

Cum Brady v. United States, 397 U.S. 742, 757 (1970)

(refusing to disturb a guilty plea that was based on a mistaken

fear that the death penalty was available). Brady s claim that

his plea was involuntary rested solely upon his

misunderstanding of the anticipated costs of not pleading

guilty. In Brady, however, unlike here, the defendant had been

adequately and accurately informed of the elements of the

charged offense. Brady’s “strategic miscalculations concerning

the evidentiary strength of the government 's case or concerning

the penalties that may be imposed upon conviction . .. did ‘not

inepugn the truth or reliability of his plea. United States v.

Brown, 117 F.3d 471, 478 (11th Cir. 1997) (quoting Brady, 397

U.S. at 757).”"

By contrast, Bousley’s guilty plea itself is wholly

= By the same token, the fact that a defendant may plead guilty and

consent to punishment despite his claim of innocence, see North Carolina

v. Alford, 400 U.S. 25 (1970), is no reason to permit Bousley’s conviction

to stand. “Because of the importance of protecting the innocent and of

insuring that guilty pleas are a product of free and intelligent choice, even

an Alford plea may not be accepted “unless there is a factual basis for the

plea.” /d at 38n.10. There is no such factual basis here. And of course,

an individual entering an Alford plea must “voluntarily, knowingly, and

understandingly” consent to punishment, id. at 37; Bousley did not.

30

unreliable. That the guilty plea and plea agreement were the

product of “negotiation and concession,” as the court of appeals

put it, Pet. App. 4,” is no reason to refrain from scrutinizing the

validity of the plea. While this Court frequently has recognized

the importance of plea bargaining to the administration of

justice, see Santobello v. New York, 404 U.S. 257, 260 (1971),

the mere existence of a plea agreement cannot foreclose a

challenge to a conviction and sentence that were not authorized

by the criminal statute under which a defendant has been

convicted or that were procured by an involuntary plea.

Thus, Bousley’s guilty plea—whether valid or

not—does not bar him from obtaining relief pursuant to § 2255

to remedy this fundamental miscarriage of justice.

CONCLUSION

For the foregoing reasons, amici urge this Court to

reverse the judgment of the court of appeals.

Respectfully submitted,

DAVID M. PORTER RONALD H. WEICH

801 K Street, 10th Floor BONNIEI. ROBIN-VERGEER*

Sacramento, CA 95814 ZUCKERMAN, SPAEDER, GOLDSTEIN

(916) 498-5700 TAYLOR & KOLKER, L.L.P.

1201 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 778-1800

KYLE W. O’DowpbD

1612 K Street, N.W., #1400

Washington, D.C. 20006

(202) 822-6700 *Counsel of Record

22 The court noted that in exchange for his plea of guilty, Bousley was

afforded the “opportunity” to contest at sentencing the amount of drugs for

which he would be held accountable. Pet. App. 4. This was hardly a

“concession,” id, for even a defendant who pleads guilty is entitled to have