Bousley v. U.S.

Decision Date18 May 1998
Docket Number968516
Citation118 S.Ct. 1604,523 U.S. 614,140 L.Ed.2d 828
PartiesKenneth Eugene BOUSLEY, Petitioner, v. UNITED STATES
CourtU.S. Supreme Court
Syllabus*

Petitioner pleaded guilty to drug possession with intent to distribute, 18 U.S.C. §841(a)(1), and to "using'' a firearm "during and in relation to a drug trafficking crime,'' §924(c)(1), but reserved the right to challenge the quantity of drugs used in calculating his sentence. He appealed his sentence, but did not challenge the plea's validity. The Eighth Circuit affirmed. Subsequently, he sought habeas relief, claiming his guilty plea lacked a factual basis because neither the "evidence'' nor the "plea allocation'' showed a connection between the firearms in the bedroom of the house and the garage where the drug trafficking occurred. The District Court dismissed the petition on the ground that a factual basis for the plea existed because the guns in the bedroom were in close proximity to the drugs and were readily accessible. While petitioner's appeal was pending, this Court held that a conviction for using a firearm under §924(c)(1) requires the Government to show "active employment of the firearm,'' Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 506, 133 L.Ed.2d 472, not its mere possession, id., at 143, 116 S.Ct., at 505-506. In affirming the dismissal in this case, the Eighth Circuit rejected petitioner's argument that Bailey should be applied retroactively, that his guilty plea was not knowing and intelligent because he was misinformed about the elements of a §924(c)(1) offense, that this claim was not waived by his guilty plea, and that his conviction should therefore be vacated.

Held: Although petitioner's claim was procedurally defaulted, he may be entitled to a hearing on its merits if he makes the necessary showing to relieve the default. Pp. ____-____.

(a) Only a voluntary and intelligent guilty plea is constitutionally valid. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468-1469, 25 L.Ed.2d 747. A plea is not intelligent unless a defendant first receives real notice of the nature of the charge against him. Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859. Petitioner's plea would be, contrary to the Eighth Circuit's view, constitutionally invalid if he proved that the District Court misinformed him as to the elements of a §924(c)(1) offense. Brady v. United States, supra, McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785, distinguished. P. ____.

(b) The rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334-that new constitutional rules of criminal procedure are generally not applicable to cases that became final before the new rules were announced-does not bar petitioner's claim. There is nothing new about the principle that a plea must be knowing and intelligent; and because Teague by its terms applies only to procedural rules, it is inapplicable to situations where this Court decides the meaning of a criminal statute enacted by Congress. Pp. ____-____.

(c) Nonetheless, there are significant procedural hurdles to consideration of the merits of petitioner's claim, which can be attacked on collateral review only if it was first challenged on direct review. Since petitioner appealed his sentence, but not his plea, he has procedurally defaulted the claim he presses here. To pursue the defaulted claim in habeas, he must first demonstrate either "cause and actual prejudice,'' e.g., Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397, or that he is "actually innocent,'' id., at 496, 106 S.Ct. at 2649. His arguments that the legal basis for his claim was not reasonably available to counsel at the time of his plea and that it would have been futile to attack the plea before Bailey do not establish cause for the default. However, the District Court did not address whether petitioner was actually innocent of the charge, and the Government does not contend that he waived this claim by failing to raise it below. Thus, on remand, he may attempt to make an actual innocence showing. Actual innocence means factual innocence, not mere legal insufficiency. Accordingly, the Government is not limited to the existing record but may present any admissible evidence of petitioner's guilt. Petitioner's actual innocence showing must also extend to charges that the Government has forgone in the course of plea bargaining. However, the Government errs in maintaining that petitioner must prove actual innocence of both "using'' and "carrying'' a firearm in violation of §924(c)(1). The indictment charged him only with "using'' firearms, and there is no record evidence that the Government elected not to charge him with "carrying'' a firearm in exchange for his guilty plea. Pp. ____-____.

97 F.3d 284, reversed and remanded.

REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined.

L. Marshall Smith, appointed by court for petitioner.

Michael R. Dreeben, Washington, DC, for respondent.

Thomas C. Walsh, amicus curiae, by special leave of court.

Chief Justice REHNQUIST delivered the opinion of the Court.

Petitioner pleaded guilty to "using'' a firearm in violation of 18 U.S.C. §924(c)(1) in 1990. Five years later we held in Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995), that §924(c)(1)' s "use'' prong requires the Government to show "active employment of the firearm.'' Petitioner meanwhile had sought collateral relief under 28 U.S.C. §2255, claiming that his guilty plea was not knowing and intelligent because he was misinformed by the District Court as to the nature of the charged crime. We hold that, although this claim was procedurally defaulted, petitioner may be entitled to a hearing on the merits of it if he makes the necessary showing to relieve the default.

Following his arrest in March 1990, petitioner was charged with possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §841(a)(1). A superseding indictment added the charge that he "knowingly and intentionally used . . . firearms during and in relation to a drug trafficking crime,'' in violation of 18 U.S.C. §924(c). App. 5-6. Petitioner agreed to plead guilty to both charges while reserving the right to challenge the quantity of drugs used in calculating his sentence. Id., at 10-12.

The District Court accepted petitioner's pleas, finding that he was "competent to enter [the] pleas, that [they were] voluntarily entered, and that there [was] a factual basis for them.'' Id., at 29-30. Following a sentencing hearing, the District Court sentenced petitioner to 78 months' imprisonment on the drug count, a consecutive term of 60 months' imprisonment on the §924(c) count, and four years of supervised release. Id., at 83-84. Petitioner appealed his sentence, but did not challenge the validity of his plea. The Court of Appeals affirmed. 950 F.2d 727 (8th Cir.1991).

In June 1994, petitioner sought a writ of habeas corpus under 28 U.S.C. §2241, challenging the factual basis for his guilty plea on the ground that neither the "evidence'' nor the "plea allocution'' showed a "connection between the firearms in the bedroom of the house, and the garage, where the drug trafficking occurred.'' App. 109. A magistrate judge recommended that the petition be treated as a motion under 28 U.S.C. §2255 and recommended dismissal, concluding that there was a factual basis for petitioner's guilty plea because the guns in petitioner's bedroom were in close proximity to drugs and were readily accessible. App. 148-153. The District Court adopted the magistrate judge's Report and Recommendation and ordered that the petition be dismissed. Id., at 154-155.

Petitioner appealed. While his appeal was pending, we held in Bailey that a conviction for use of a firearm under §924(c)(1) requires the Government to show "active employment of the firearm.'' 516 U.S., at 144, 116 S.Ct., at 506. As we explained, active employment includes uses such as "brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire'' the weapon, id., at 148, 116 S.Ct., at 508, but does not include mere possession of a firearm, id., at 143, 116 S.Ct., at 505. Thus, a "defendant cannot be charged under §924(c)(1) merely for storing a weapon near drugs or drug proceeds,'' or for "placement of a firearm to provide a sense of security or to embolden.'' Id., at 149, 116 S.Ct., at 508.

Following our decision in Bailey, the Court of Appeals appointed counsel to represent petitioner. Counsel argued that Bailey should be applied "retroactively,'' that petitioner's guilty plea was involuntary because he was misinformed about the elements of a §924(c)(1) offense, that this claim was not waived by his guilty plea, and that his conviction should therefore be vacated. Nevertheless, the Court of Appeals affirmed the District Court's order of dismissal. Bousley v. Brooks, 97 F.3d 284 (C.A.8 1996).

We then granted certiorari, 521 U.S. ----, 118 S.Ct. 31, 138 L.Ed.2d 1060 (1997), to resolve a split among the Circuits over the permissibility of post-Bailey collateral attacks on §924(c)(1) convictions obtained pursuant to guilty pleas. 1 Because the Government disagreed with the Court of Appeals' analysis, we appointed amicus curiae to brief and argue the case in support of the judgment below. 522 U.S. ----, 118 S.Ct. 463, 139 L.Ed.2d 396 (1997).

A plea of guilty is constitutionally valid only to the extent it is "voluntary'' and "intelligent.'' Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). We have long held that a plea...

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