Bousley v. Brooks, No. 95-2687

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore BOWMAN, BEAM, and LOKEN; BEAM
Citation97 F.3d 284
Docket NumberNo. 95-2687
Decision Date18 December 1996
PartiesKenneth Eugene BOUSLEY, Appellant, v. Joseph M. BROOKS, Warden, Appellee.

Page 284

97 F.3d 284
Kenneth Eugene BOUSLEY, Appellant,
v.
Joseph M. BROOKS, Warden, Appellee.
No. 95-2687.
United States Court of Appeals,
Eighth Circuit.
Submitted July 26, 1996.
Decided Oct. 3, 1996.
Rehearing and Suggestion for Rehearing En Banc Denied Dec. 18, 1996.

Page 286

Lamar Marshall Smith, argued, St. Paul, MN, for appellant.

Jeffrey S. Paulsen, Asst. U.S. Attorney, argued, St. Paul, MN, for appellee.

Before BOWMAN, BEAM, and LOKEN, Circuit Judges.

BEAM, Circuit Judge.

Kenneth E. Bousley was convicted in 1990, upon a plea of guilty, for drug trafficking and use of a firearm in relation to a drug offense. He now appeals from the district court's 1 dismissal of his 28 U.S.C. § 2255 habeas corpus petition. We affirm.

I. BACKGROUND

On March 19, 1990, police officers executed a search warrant at Bousley's home in Minneapolis, Minnesota. The officers found two coolers in Bousley's garage. Inside the coolers were two briefcases containing approximately seven pounds (3,153 grams) of methamphetamine. One of the coolers also contained two loaded handguns and one unloaded handgun. A coffee can in the garage contained an additional 33 grams of methamphetamine. The officers found another 6.9 grams of methamphetamine and two loaded handguns in Bousley's bedroom.

Bousley was charged with possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and with use of a firearm in relation to a drug offense pursuant to 28 U.S.C. § 924(c). Bousley admitted that he had been selling methamphetamine from his garage. He also admitted knowledge of the drugs and firearms in his bedroom, as well as of the drugs found in the coffee can in the garage. Bousley disclaimed knowledge of the drugs and firearms found inside the two coolers.

Bousley entered a plea of guilty to both the drug and firearms charges. The plea agreement stipulated that Bousley could challenge the amount of drugs that would be used to determine his sentence. In accordance with this agreement, the district court held an evidentiary hearing at which it received exhibits and took testimony from Bousley and FBI Special Agent Michael Kelly, who had interviewed Bousley after his arrest. Based on the hearing and on Bousley's presentence report, the district court determined that Bousley's sentence for the drug charge would be based on the 946.9 grams of methamphetamine found in Bousley's bedroom, in the coffee can, and in one of the two briefcases in the garage. The court decided not to consider the approximately five pounds of drugs found in the second briefcase in determining the relevant conduct for which Bousley was accountable. The court sentenced Bousley to a term of seventy-eight months for the section 841(a)(1) drug charge and to a consecutive mandatory sixty-month sentence under § 924(c) for use of the firearms in relation to the drug offense.

Bousley appealed his sentence under the drug charge. This court affirmed. United States v. Bousley, 950 F.2d 727 (8th Cir.1991). Bousley then brought this habeas corpus action pursuant to 28 U.S.C. § 2255. Bousley claims: (1) that his plea of guilty to the section 924(c) firearms charge is not supported by an adequate factual basis; and (2) that section 924(c) is unconstitutionally vague. The district court dismissed the petition and Bousley appeals. After Bousley filed his appeal, the United States Supreme Court clarified the scope of section 924(c) in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Bousley then supplemented his brief, arguing that Bailey requires us to set aside his guilty plea.

Page 287

II. DISCUSSION

We review the district court's dismissal of Bousley's section 2255 petition de novo. Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir.1992). In the proceedings below, the government argued that Bousley waived his right to challenge his conviction in a collateral action because he failed to preserve this issue in his prior appeal. While the district court considered the merits of Bousley's claims in dismissing the petition, we find the waiver issue dispositive.

A. Waiver

A petitioner who fails to raise an issue on direct appeal is thereafter barred from raising that issue for the first time in a section 2255 habeas corpus proceeding. Reid v. United States, 976 F.2d 446, 447 (8th Cir.1992), cert. denied, 507 U.S. 945, 113 S.Ct. 1351, 122 L.Ed.2d 732 (1993) (citing United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982)). Such a waiver applies to convictions pursuant to plea agreements as well as to those rendered after trial. See id. at 448 (defendant convicted of section 924(c) violation after nolo contendere plea pursuant to a plea agreement is barred from challenging conviction in section 2255 action). A petitioner is excused from a procedural default only if he can show both (1) a cause that excuses the default, and (2) actual prejudice from the errors that are asserted. Id.

In his prior appeal, Bousley challenged only the propriety of the sentence imposed for his possession of...

To continue reading

Request your trial
48 practice notes
  • United States v. Blount, CASE NO. 3:15-CR-30002-PKH-MEF-1
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • July 14, 2017
    ...prejudice from the errors that are asserted." Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997) (quoting Bousley v. Brooks, 97 F.3d 284, 287 (8th Cir. 1996)); Apfel, 97 F.3d at 1076; and, Frady, 456 U.S. at 167-68. "For cause to exist, the external impediment, whether it be gover......
  • Hanserd, In re, No. 96-8051
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 25, 1997
    ...for guilty plea). Only the Eighth Circuit has taken a contrary stand, in a decision that did not discuss Henderson. Bousley v. Brooks, 97 F.3d 284, 288 & n. 4 (8th Cir.1996), petition for cert. filed (U.S. Mar. 18, 1997) (No. 96-8516). But see Hohn v. United States, 99 F.3d 892, 894 & n. 1 ......
  • U.S. v. Barron, No. 96-36058
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 16, 1999
    ...the government had raised the procedural default issue at both the district court and the circuit court level. See Bousley v. Brooks, 97 F.3d 284, 287 (8th Cir.1996), rev'd sub nom. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Bousley was issued five month......
  • Com. v. Hughes
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 21, 2004
    ...new, constitutionally based rules of criminal procedure are to be retroactively applied under Teague. See generally Bousley v. Brooks, 97 F.3d 284, 287 n. 2 (8th Cir.1996) (noting the distinction between waiver and retroactivity in the context of collateral review), rev'd on other grounds, ......
  • Request a trial to view additional results
48 cases
  • United States v. Blount, CASE NO. 3:15-CR-30002-PKH-MEF-1
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • July 14, 2017
    ...prejudice from the errors that are asserted." Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997) (quoting Bousley v. Brooks, 97 F.3d 284, 287 (8th Cir. 1996)); Apfel, 97 F.3d at 1076; and, Frady, 456 U.S. at 167-68. "For cause to exist, the external impediment, whether it be gover......
  • Hanserd, In re, No. 96-8051
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 25, 1997
    ...for guilty plea). Only the Eighth Circuit has taken a contrary stand, in a decision that did not discuss Henderson. Bousley v. Brooks, 97 F.3d 284, 288 & n. 4 (8th Cir.1996), petition for cert. filed (U.S. Mar. 18, 1997) (No. 96-8516). But see Hohn v. United States, 99 F.3d 892, 894 & n. 1 ......
  • U.S. v. Barron, No. 96-36058
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 16, 1999
    ...the government had raised the procedural default issue at both the district court and the circuit court level. See Bousley v. Brooks, 97 F.3d 284, 287 (8th Cir.1996), rev'd sub nom. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Bousley was issued five month......
  • Com. v. Hughes
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 21, 2004
    ...new, constitutionally based rules of criminal procedure are to be retroactively applied under Teague. See generally Bousley v. Brooks, 97 F.3d 284, 287 n. 2 (8th Cir.1996) (noting the distinction between waiver and retroactivity in the context of collateral review), rev'd on other grounds, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT