Young v. U.S.

• Decision Date: 22 August 1997
• Docket Number: No. 97-1518,97-1518
• Citation: 124 F.3d 794
• Parties: Ernest YOUNG, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 794

124 F.3d 794

Ernest YOUNG, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 97-1518.

United States Court of Appeals Seventh Circuit.

Argued Aug. 5, 1997.

Decided Aug. 21, 1997.

As Amended Aug. 22, 1997.

George Taseff (argued), David B. Mote, Office of the Federal Public Defender, Springfield, IL, for Petitioner-Appellant.

Colin S. Bruce (argued), Office of the United States Attorney, Urbana Division, Urbana, IL, for Respondent-Appellee.

Before EASTERBROOK, MANION, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

In 1994 Ernest Young pleaded guilty to distributing cocaine, to possessing a firearm despite a prior felony conviction, and to carrying a gun during and in relation to a drug offense. Two years later, he filed a petition under 28 U.S.C. § 2255, asking the judge to vacate the third of these convictions, on the ground that Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), revamps the understanding of 18 U.S.C. § 924(c). The district court denied the petition after concluding that the acts to which Young admitted violate the statute as it is understood in 1997.

Young agreed to sell four ounces of crack cocaine to a person who turned out to be an undercover agent. Young and Eugene Smith drove to the agreed delivery point. In the car Young toted both the cocaine and a loaded gun, in order to protect himself. The agent persuaded Young to make delivery elsewhere. When the arrest occurred a few blocks away, Young had the drugs but not the weapon. Young now contends that only someone who carries a gun during and in relation to a drug offense of which he was convicted violates § 924(c). He was convicted of distributing the cocaine, but not of possessing the drug with intent to distribute it. Although he allows that he may have carried the gun in connection with the possession, he did not carry it at the time of the distribution. An alternative understanding of the argument is that only someone who has the gun on his person, or within ready reach, at the time of arrest violates § 924(c).

I

How Young's contentions come before us for decision is something of a mystery. Young might have denied culpability and taken a direct appeal, but he pleaded guilty and did not appeal. It is hornbook law that § 2255 cannot be used as a belated appeal. Bailey appears to have little if any bearing on Young's argument, and anyway the Supreme Court has not held that Bailey applies retroactively to persons whose sentences became final before its announcement on December 6, 1995. One might have expected the prosecutor to alert the district judge to these shortcomings. But the only procedural defense the prosecutor offered was that the petition was untimely under amendments to § 2255 made by the Antiterrorism and Effective Death Penalty Act. This was quickly dispatched in light of our conclusion that the time limit does not apply to petitions filed before April 23, 1997. See Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc), reversed on other grounds, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Other potential defenses were ignored, in the district court and on appeal. Lest our decision be understood to decide sub silentio that the sequence may be replicated, we point out four potential obstacles.

1. Section 2255 is not a way to advance arguments that could have been presented earlier--especially not when the arguments rest entirely on a statute. See Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994). Although § 2255 p 1 permits a collateral attack on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States", only a small portion of statutory claims demonstrate that the sentence or conviction is itself a violation of law. The error must be so fundamental that a "complete miscarriage of justice" has occurred. Reed, 512 U.S. at 348, 114 S.Ct. at 2297, quoting from Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). Other "non-constitutional errors which could have been raised on appeal but were not, are barred on collateral review--regardless of cause and prejudice." Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir.1988). If a legal development after the conviction shows that the "conviction and punishment are for an act that the law does not make criminal", Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974), the statutory standard is satisfied: the change of law shows why the claim could not have been made earlier, and imprisonment for a non-crime is a miscarriage of justice.

Young does not contend that he is in prison for an act the law does not make criminal. He believes that he could not be convicted under § 924(c) without also being convicted of possessing cocaine with intent to distribute. That is to say, he complains that the United States did not charge him with enough crimes--for the facts adduced when his plea of guilty was accepted show that he possessed cocaine with intent to distribute that drug. Perhaps something about § 924(c) limits its operation to the use of guns in relation to other acts that lead to convictions, but this is a long way from a claim that Young's acts were not crimes.

What is more, in Broadway v. United States, 104 F.3d 901, 902-04 (7th Cir.1997), we held that the Davis standard is not satisfied by a claim that Bailey altered the understanding of the "carry" element in § 924(c) or the "in relation to" component of that crime. Broadway like Young was convicted of carrying a gun during and in relation to a drug offense; the same judge who denied Young's petition granted Broadway's; we reversed, holding among other things that, because Bailey concerned only the "use" element of § 924(c), § 2255 does not permit a collateral attack in cases that turn on the other elements. Four days after we issued Broadway, the district judge denied Young's petition on the merits, without mentioning Broadway; 53 days after Broadway was released, the district judge issued a certificate of appealability in Young's case, again without mentioning our decision. And the United States Attorney likewise has ignored Broadway. Limitations on the scope of § 2255 relief do not affect the subject-matter jurisdiction of the federal courts, so the United States has forfeited the benefits of Reed, Davis, and Broadway. Perhaps there is an answer to our doubts, based on cases such as Lee v. United States, 113 F.3d 73 (7th Cir.1997), but Lee is in tension with Broadway and the cases on which Broadway relied. Given the prosecutor's forfeiture, now is not the time to reconcile the approaches of different panels.

2. Both Young and the district judge treat Bailey as reopening every conviction under § 924(c), no matter how long ago that conviction may have been obtained and no matter what issues the petitioner now wants to litigate. Yet even if we get past the limited scope of § 2255, other problems remain--not least the question whether Bailey is retroactive. Changes in the law apply to cases that were already "final" (as Young's was) only if they place primary conduct beyond the power of the state to regulate or establish procedures that are implicit in the concept of ordered liberty. Teague v. Lane, 489 U.S. 288, 305-10, 109 S.Ct. 1060, 1072-75, 103 L.Ed.2d 334 (1989). Whatever one thinks about how Bailey's reinterpretation of the "use" element fits the Teague model there can be no doubt that nothing remotely close to satisfying Teague has occurred for the other aspects of § 924(c). Bailey has nothing to say about a claim of the kind Young makes, which deals with the relation between the § 924(c) charge and the other counts of the indictment. Cases such as Eaglin v. Welborn, 57 F.3d 496, 498-99 (7th Cir.1995) (en banc), show that Teague is not a jurisdictional obstacle, however, and as in Eaglin the importance of the issue on the merits leads us not to use the power to invoke a Teague bar unbidden.

3. Young pleaded guilty to the § 924(c) charge. A litigant who can show cause and prejudice may be relieved from a forfeiture, such as a failure to present claims at trial or on appeal. But a litigant who waives a legal claim cannot obtain relief later. United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993). A conviction based on a waiver cannot be in "error" and therefore cannot be annulled. A guilty plea is a waiver, and as long as the plea was voluntary (and entered with effective assistance of counsel) it is conclusive on all factual and legal issues other than a contention that the very initiation of the proceedings violated the Constitution--a claim that Young does not advance. See United States v. Broce, 488 U.S. 563, 574-76, 109 S.Ct. 757, 765-66, 102 L.Ed.2d 927 (1989).

Two decisions of this court, Stanback v. United States, 113 F.3d 651 (7th Cir.1997), and Lee v. United States, supra, conclude that claims based on Bailey may be advanced notwithstanding pleas of guilty. These decisions do not assist Young, whose claim is not based on Bailey. But the logic of Stanback and Lee nonetheless could be pertinent: each case characterized a guilty plea as an admission of the facts alleged in the indictment, but not a waiver of a defense that the acts do not violate the law. Lee, 113 F.3d at 75; Stanback, 113 F.3d at 654 ("In electing to plead guilty ... the defendant waives a challenge to the facts underlying the charge, but he does not waive the right to contest whether those facts are sufficient to constitute a crime."). Unfortunately, neither Lee nor Stanback discusses Broce--or, for that matter, any of the many other decisions in which the Supreme Court treats a guilty plea as a waiver of legal defenses. The tenth circuit in Broce took the same position as our panels in Lee and Stanback: that a guilty plea admits the facts but does not waive legal defenses. 781...