U.S.A.v Smith

• Citation: 250 F.3d 1073
• Decision Date: 08 May 2001
• Docket Number: No. 99-4253,99-4253
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Anthony A. Smith, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1073

250 F.3d 1073 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Anthony A. Smith, Defendant-Appellant.

No. 99-4253

In the United States Court of Appeals For the Seventh Circuit

Decided May 8, 2001

Petition for Rehearing and Rehearing En Banc

Before Flaum, Chief Judge, and Posner, Coffey, Easterbrook, Ripple, Manion, Kanne, Rovner, Diane P. Wood, Evans, and Williams, Circuit Judges.

Defendant-appellant filed a petition for rehearing and rehearing en banc on February 15, 2001. A vote of the active members of the court was requested, Circuit Judges Rovner, Diane P. Wood and Williams voted to grant rehearing en banc, and a majority of the judges voted to deny rehearing en banc. All of the judges on the panel have voted to deny rehearing. The petition for rehearing is therefore DENIED.

Diane P. Wood, Circuit Judge, with whom Rovner and Williams, Circuit Judges, join, dissenting from denial of rehearing en banc.

The panel's opinion in this case addresses and resolves a question of general importance for a recurring issue in collateral attacks on criminal convictions: how do the rules of procedural default operate when a later Supreme Court decision changes the legal landscape faced by a defendant at the time of trial? According to the panel, even if there is no way that a defendant, or more to the point, defense counsel, could have anticipated the later legal ruling, the defendant cannot raise the point in a later collateral attack. I find this conclusion troubling from many perspectives, which I explain briefly below: first, contrary to the panel's suggestion, it is neither compelled by nor is it even consistent with the Supreme Court's pair of decisions in Bailey v. United States, 516 U.S. 137 (1995), and Bousley v. United States, 523 U.S. 614 (1998); second, as the annual filing statistics from this court and our sister circuits attest, habeas corpus petitions and the rules of procedural default consume enormous resources for the court and are of vital importance to the parties; and third, from a pragmatic standpoint, the panel has imposed an impossible burden on defense counsel.

First and most importantly, the panel has not paid sufficiently close attention to the rules the Supreme Court was following in Bailey and Bousley. Bailey, everyone will recall, resolved a conflict in the circuits over the interpretation of the "use" part of one of the federal firearms statutes, 18 U.S.C. sec. 924(c). The Court's decision adopted a narrower interpretation than many courts, including this one, had used, by holding that "use" connoted active employment. The Bailey ruling was followed by a flood of petitions for collateral relief filed by prisoners who had been convicted under the disapproved standard. These were straightforward enough when the petitioner had been convicted after a full trial, and when there was no alternate ground upon which to uphold the conviction, but it was unclear whether Bailey should be applied in cases where the defendant had entered a guilty plea to the offense.

In Bousley, the Court confronted that question. It first held that the retroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989), was not applicable and did not bar Bousley's claim, because Teague applies only to procedural rules. 523 U.S. at 620. Furthermore, the essence of Bousley's argument was that his guilty plea was not knowing and intelligent (because he pleaded thinking that "use" meant passive association with the gun, and that was not the correct interpretation of the statute). There was nothing "new" about the rule that guilty pleas must be knowing and intelligent, which was another reason why Teague was not helpful. Id. Next, the Court turned to the point that is important for the case now before us: procedural default. Even if Bousley's claim was not Teague- barred, it was procedurally defaulted because Bousley had not challenged the validity of his plea on direct appeal.

This led the Court to consider whether any exception to the rules of procedural default applied that would permit Bousley's claim to go forward. One possibility is a showing of cause and prejudice, as required by Wainwright v. Sykes, 433 U.S. 72, 87 (1977); the other is a showing that the constitutional error resulted in the conviction of one who is actually innocent. With respect to the "cause and prejudice" avenue, the Court looked at two potential arguments: first, that an argument based on the "true" meaning of sec. 924(c) was unavailable to Bousley at the time of his plea; and second, that an effort to show that "use" was being treated too broadly would have been futile at the time of the plea. The Court concluded that Bousley could not show "cause" in either of those ways, but it found that he was essentially making a claim of actual innocence, which sufficed to overcome his procedural default. Contrary to the implication in the panel's opinion, however, the Court did not rule as a matter of law that the first two theories were meritless in all cases. Instead, as the following (somewhat lengthy) passage from the Bousley opinion illustrates, it took a more nuanced view of those arguments:

Petitioner [i.e. Bousley] offers two explanations for his default in an attempt to demonstrate cause. First, he argues that "the legal basis for his claim was not reasonably available to counsel" at the time his plea was entered. . . . This argument is without merit. While we have held that a claim that "is so novel that its legal basis is not reasonably available to counsel" may constitute cause for a procedural default, Reed v. Ross, 468 U.S. 1, 16 (1984), petitioner's claim does not qualify as such. The argument that it was error for the District Court to misinform petitioner as to the statutory elements of sec. 924(c)(1) was most surely not a novel one. See Henderson [v. Morgan] 426 U.S. [637], at 645-646 [(1976)]. Indeed, at the time of petitioner's plea, the Federal Reporters were replete with cases involving challenges to the notion that "use" is synonymous with mere "possession." . . . Petitioner also contends that his default should be excused because, "before Bailey, any attempt to attack [his] guilty plea would have been futile." . . . This argument, too, is unavailing. As we clearly stated in Engle v. Isaac, 456 U.S. 107 (1982), "futility cannot constitute cause if it means simply that a claim was 'unacceptable to that particular court at that particular time.'" Id., at 130, n.35. Therefore, petitioner is unable to establish cause for his default.

Bousley, 523 U.S. at 622-23 (some citations omitted).

This discussion would have been considerably shorter if the Court had really meant to say that legal unavailability and futility are simply never enough to show "cause" excusing a procedural default. It would have needed only to say so, without all the qualifications that appear in the paragraph quoted above. In the case before it, it was rather easy to find that neither legal unavailability nor futility applied. After all, the Court had taken Bailey to resolve a conflict in the circuits, and as the Court pointed out, the Federal Reporters were "replete" with decisions on which Bousley's lawyer could have relied.

In order to apply Bousley to our case, we must take a careful look at the criteria the Court established and the reasons why Bousley's own effort to demonstrate cause failed. Taking the Court at its word and considering the "legal unavailability" argument first, there are several points that it flagged for consideration before a court may conclude that an argument was legally "available." First, was the proposed rule fairly suggested by precedent? Second, had any court accepted the proposed rule? Third, if the answer to the first two is yes, how widely accepted had the rule become at the time of the guilty plea (or other pertinent time)? With respect to the futility point, the Court drew a similar distinction between arguments that are unacceptable to particular courts, at particular times, and arguments that are more generally unacceptable. That this is what the Court meant becomes even more apparent when one looks at footnote 2 to the Bousley opinion, on the same page as the quoted passage, where the Court quotes the passage from Engle that stresses the "availability" and hence non-futility of a claim that...