123 F.3d 922 (6th Cir. 1997), 96-8051, In re Hanserd

Docket Nº:96-8051.
Citation:123 F.3d 922
Party Name:In re Edward HANSERD, Movant.
Case Date:August 25, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 922

123 F.3d 922 (6th Cir. 1997)

In re Edward HANSERD, Movant.

No. 96-8051.

United States Court of Appeals, Sixth Circuit

August 25, 1997

Argued Feb. 4, 1997.

Page 923

Edward Hanserd, Terre Haute, IN, pro se.

Page 924

Eric M. Jaegers (argued and briefed), Louisville, KY, for Petitioner.

Kathleen Moro Nesi (argued and briefed), Asst. U.S. Attorney, Office of the U.S. Attorney, Detroit, MI, for Respondent.

Before: MARTIN, Chief Judge, NORRIS and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which MARTIN, C.J., joined. NORRIS, J. (p. 935), delivered a separate opinion concurring in the result.

MOORE, Circuit Judge.

Movant Edward Hanserd, a federal prisoner, requests permission to file a second motion to vacate his sentence under 28 U.S.C. § 2255. For the reasons discussed below, we hold that our permission is not necessary in this case.


In 1991, Hanserd pleaded guilty to one count of conspiracy to distribute cocaine and two counts of using a firearm in a drug trafficking offense, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 924(c), respectively. See J.A. at 18-19, 21-22 (Indictment); J.A. at 34 (Judgment in Criminal Case). Hanserd received consecutive sentences of thirty years of imprisonment on the conspiracy count and five years on each of the firearms charges, for a total of forty years. 1 J.A. at 35. A panel of this court affirmed the conviction and sentence in an unpublished opinion. United States v. Hanserd, 1993 WL 428907 (6th Cir. Oct.21, 1993), cert denied, 510 U.S. 1140, 114 S.Ct. 1125, 127 L.Ed.2d 433 (1994).

In May 1995 Hanserd filed a motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his drug conviction violated the Double Jeopardy Clause. The district court denied the motion in July of that year, and we again affirmed on appeal. Hanserd v. United States, 1996 WL 316491 (6th Cir. June 10, 1996).

While that appeal was pending, two events occurred in Washington that are critical to this case. On December 6, 1995, the Supreme Court announced its decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); on April 24, 1996 the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) [hereinafter "AEDPA" or "the Act"]. Bailey held that the lower courts, this circuit included, had been sustaining convictions under § 924(c) for conduct that was not illegal. The AEDPA, among its many provisions, places new restrictions on the rights of prisoners to file more than one motion to set aside their convictions or sentences under 28 U.S.C. § 2255 and requires that a prisoner get permission from the court of appeals before filing a successive motion. Hanserd filed a motion with this court on November 6, 1996 seeking an order authorizing the district court to consider a second or successive § 2255 motion based upon the intervening Bailey decision. Hanserd now argues that under Bailey the gun-related conduct for which he is to serve ten years in prison was never a crime; the government replies that, even if that is the case, the AEDPA has eliminated Hanserd's right to seek relief under § 2255. We have jurisdiction over this motion under 28 U.S.C. § 2255. See 28 U.S.C. § 2244(b)(3).


This case presents us primarily with the question of whether AEDPA's new restriction on filing multiple § 2255 motions "is the type of provision that should govern cases arising before its enactment." Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 1504, 128 L.Ed.2d 229 (1994). Because Congress has not expressed any clear intent as to the answer to this question, we must resort to Landgraf's default rules to decide the question. We must first determine whether the new legislation makes any changes to the controlling law. We must then decide whether, in light of any change, applying the relevant new law would attach new legal consequences to conduct antedating the Act's passage such that applying it would have impermissible retroactive effect.

Page 925

Id. We begin, then, with a comparison of how Hanserd's claim would fare procedurally under the pre- and post-AEDPA law.

  1. Federal Habeas Corpus vs. 28 U.S.C. § 2255 Motions

    The two common federal procedures for relief from illegal confinement--application for a writ of habeas corpus, under 28 U.S.C. §§ 2241, 2244, and motion under § 2255, are, although similar in many ways, distinct: a § 2255 motion is not a petition for a writ of habeas corpus. United States v. Hayman, 342 U.S. 205, 220, 72 S.Ct. 263, 272, 96 L.Ed. 232 (1952) ("[A § 2255 action] is not a habeas corpus proceeding."). See RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS [hereinafter " § 2255 RULES"] 1 Advisory Committee Notes (noting that "the person seeking relief from federal custody files a motion to vacate, set aside, or correct sentence, rather than a petition for habeas corpus"). Section 2255 is, rather, a statutory remedy that Congress enacted to supplant habeas corpus for federal prisoners. Hayman, 342 U.S. at 215, 72 S.Ct. at 269. The reasons for the provision are clear. Because at the time a court could grant a habeas corpus petition only to a prisoner within its geographical jurisdiction, 2 28 U.S.C. § 2241(a), (d); Hayman, 342 U.S. at 220, 72 S.Ct. at 272 the small number of district courts that happened to have major federal prisons in their jurisdictions were, prior to § 2255's enactment, swamped with habeas applications by federal prisoners. Id. at 213-14 & n. 18, 72 S.Ct. at 268-69 & n. 18; id. at 217 n. 25, 72 S.Ct. at 271 n. 25. In addition, because federal prisoners are often incarcerated far from the scene of their crimes and from the courts that convicted and sentenced them, court records and potential witnesses would often be located thousands of miles from the court examining the habeas petition. Id. at 213-14, 72 S.Ct. at 268-69; id. at 217 n. 25, 72 S.Ct. at 271 n. 25. Congress therefore, following the Judicial Conference's recommendation, enacted § 2255 largely to allow the court that imposed sentence, rather than a court that happened to be near a prison, to hear a collateral attack on that sentence. Id. at 217 n. 25, 219, 72 S.Ct. at 271, n. 25, 272. See generally id. at 210-19, 72 S.Ct. at 272; § 2255 RULE 1 Advisory Committee Notes. Section 2255 additionally gives the court more flexibility in fashioning a remedy by authorizing it to "vacate, set aside or correct the sentence"; the remedy possible in habeas writ has traditionally been given a more limited scope. See § 2255 RULE 4 Advisory Committee Notes ("According to the Senate committee report the purpose of the bill was to make the proceeding a part of the criminal action so the court could resentence the applicant, or grant him a new trial. (A judge presiding over a habeas corpus action does not have these powers.)") (quoting Developments in the Law--Federal Habeas Corpus, 83 HARV. L. REV. 1038, 1208 n. 360 (1970)). 3

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  2. Whether Bailey

    Claims are Reviewable on Collateral Review

    A federal prisoner who is incarcerated for conduct that is later held not to be criminal 4 may obtain his freedom through a motion under § 2255. Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 2304-05, 41 L.Ed.2d 109 (1974); Callanan v. United States, 881 F.2d 229, 231-32 (6th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990). Callanan in particular is indistinguishable from the case at bar in this respect. Defendants in that case, father and son, had been convicted of using the mails to defraud the State and citizens of Michigan of certain "intangible rights." 881 F.2d at 232. After their convictions became final, the Supreme Court held in McNally v. United States, 483 U.S. 350, 361, 107 S.Ct. 2875, 2882, 97 L.Ed.2d 292 (1987), that the mail fraud statute at issue did not protect such intangible rights and therefore could not support such a conviction. See 881 F.2d at 231. Our court held that pursuant to Davis the Callanans were entitled to move under § 2255 to vacate their convictions. Id. at 230 ("We conclude that McNally must be applied retroactively and that the Callanans' mail fraud convictions must be vacated."). Bailey is analogous to McNally, and Callanan therefore is controlling unless AEDPA requires a different result. Compare United States v. Moore, 76 F.3d 111, 112 (6th Cir.1996) ("Bailey endorsed a narrower definition of 'use' of a firearm than this circuit had previously applied."), with Callanan, 881 F.2d at 232 ("Although the lower federal courts had interpreted the words 'scheme or artifice to defraud' as broad enough to include schemes to defraud the public of 'intangible rights' ... McNally read the statute as 'limited in scope to the protection of property rights.' "). We therefore hold that prisoners may use § 2255 to advance Bailey claims.

    We must also address the effect of Hanserd's guilty plea on his motion. A voluntary and intelligent guilty plea usually forecloses later attempts to challenge the resulting judgment; the plea serves not only to admit the conduct charged in the indictment but also to concede guilt of the substantive crime. United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). But see id. at 574-75, 109 S.Ct. at 764-65 (noting exceptions). However, "because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Accord Broce, 488 U.S. at 570, 109 S.Ct. at 762. More specifically, a guilty plea is involuntary where the defendant lacks knowledge of one of the elements required for conviction. Henderson v. Morgan, 426 U.S. 637, 644-45 & n. 13, 96...

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