Peveler v. U.S.A.

• Decision Date: 14 September 2001
• Docket Number: No. 99-6707,99-6707
• Citation: 269 F.3d 693
• Parties: (6th Cir. 2001) Terry L. Peveler, Petitioner-Appellant, v. United States of America, Respondent-Appellee. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 693

269 F.3d 693 (6th Cir. 2001)

Terry L. Peveler, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

No. 99-6707

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: September 14, 2001

Decided and Filed: October 17, 2001

Appeal from the United States District Court for the Western District of Kentucky at Owensboro. Nos. 93-00014; 96-00112, Jennifer B. Coffman, District Judge. [Copyrighted Material Omitted]

Terry L. Peveler, Manchester, KY, pro se.

Jamie L. Haworth, Patrick J. Bouldin, ASSISTANT FEDERAL PUBLIC DEFENDER, Louisville, Kentucky, for Appellant.

Terry M. Cushing, Marisa J. Ford, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.

Before: DAUGHTREY, GILMAN, and GIBSON, Circuit Judges^*.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Terry Peveler pled guilty in 1994 to five counts of illegal drug trafficking and one count of using or carrying a firearm in relation to a drug trafficking crime. After exhausting his direct appeals, Peveler filed a petition under 28 U.S.C. § 2255 to seek relief from his conviction and sentence in the United States District Court for the Western District of Kentucky. He argued in his petition that his guilty plea to the firearm count was not entered into voluntarily and intelligently, so that his subsequent conviction and sentence violated his rights under the Due Process Clause of the Fifth Amendment. Holding that Peveler had procedurally defaulted his due process claim, the district court denied Peveler's request for relief from his conviction and sentence on the firearm count. Peveler now appeals. For the reasons set forth below, we AFFIRM the judgment of the district court.

I.BACKGROUND

A.Factual background

This case involves the actions of Terry Peveler and four of his codefendants. In September of 1992, the Kentucky State Police and the police department in Livermore, Kentucky began investigating Peveler and his codefendants for suspected drug trafficking. This investigation commenced after a confidential source informed both law enforcement agencies that Peveler was using and selling illegal drugs in Western Kentucky.

At approximately the same time as the investigation of Peveler commenced, Larry Blanford was arrested by Livermore Police Chief Charles Cobb for attempted theft of a motorcycle. Blanford agreed to serve as a confidential informant and to purchase drugs from Peveler in exchange for cash payments and the dismissal of his theft charge.

Pursuant to this arrangement, Blanford informed Cobb and Kentucky State Police Detective Charles Brownd that he purchased marijuana from Peveler on November 12, 1992 and again on December 18, 1992, and that he saw Peveler weigh and package various quantities of cocaine on January 22, 1993. Blanford reported seeing firearms openly displayed in the rooms of Peveler's trailer home where the marijuana sales took place in 1992 and further stated that he saw firearms in the closet of Peveler's bedroom where the cocaine packaging occurred in 1993. Based on the information provided by Blanford, warrants were issued to arrest Peveler and search his trailer. The search resulted in the recovery of 1.5 pounds of cocaine, 12 pounds of marijuana, and 4 firearms.

B.Procedural background

A federal grand jury returned an eleven-count indictment against Peveler and his codefendants in April of 1993. The indictment named Peveler in seven of the counts. Five of these counts charged Peveler with drug trafficking in violation of 21 U.S.C. § 841(a)(1). The other two counts charged Peveler with violating 18 U.S.C. § 924(c) by using or carrying a firearm in relation to drug trafficking crimes on November12, 1992 and December 18, 1992. Peveler pled not guilty to all seven counts.

Shortly thereafter, Peveler filed a motion to suppress the evidence recovered from his trailer, contesting, among other things, whether the search was supported by probable cause. The district court referred the motion to a magistrate judge for a report and recommendation. After a hearing, the magistrate judge recommended that Peveler's motion be denied. This recommendation was adopted by the district court.

Peveler subsequently entered into a plea agreement with the government. The agreement required Peveler to plead guilty to a six-count superseding information that charged him with the same five drug trafficking counts included in the original indictment, but with only one count of violating §924(c) by using or carrying a firearm in relation to a drug trafficking crime on January 22, 1993. In return, the government dismissed the counts relating to the firearm charges on November 12, 1992 and December 18, 1992, and further agreed to recommend a prison sentence and fine at the low end of the applicable range. Peveler entered his guilty plea in September of 1994, but preserved his right to appeal the district court's denial of his motion to suppress.

In December of 1994, Peveler received a 181-month prison sentence based on the six counts of the superseding information. The five drug trafficking counts accounted for 121 of these months, with the additional 60 months attributable to the firearm count.

Peveler then appealed the denial of his motion to suppress. This court affirmed the district court's judgment denying Peveler's motion. United States v. Peveler, No. 95-5155, 1995 WL 620961 (6th Cir. Oct. 19, 1995) (unpublished table decision). The Supreme Court denied Peveler's subsequent petition for a writ of certiorari. Peveler v. United States, 516 U.S. 1137 (1996).

Proceeding pro se, Peveler then filed a petition under 28 U.S.C. § 2255 for relief from his conviction and sentence on July 24, 1996. The petition contains various grounds for relief, but the present appeal concerns only Peveler's challenge to his conviction and sentence on the firearm count. Peveler argues in his petition that he pled guilty to the firearm count because he believed that he could be convicted under §924(c) for storing firearms in close proximity to illegal drugs. But following his guilty plea, the Supreme Court held in Bailey v. United States, 516 U.S. 137, 144 (1995), that a conviction for using a firearm in relation to a drug trafficking crime can only arise if the defendant "actively employed" the firearm. Because the Supreme Court in Bailey reinterpreted a substantive provision of the criminal law, Peveler insists that the Bailey holding applies retroactively to his case. He further contends that the lack of evidence showing that he actively employed a firearm on January 22, 1993 requires that his conviction and sentence on the firearm count be vacated.

The district court referred Peveler's petition to the magistrate judge. In June of 1998, the magistrate judge recommended that the district court vacate Peveler's conviction and sentence on the firearm count. This recommendation was based on the government's concession that Peveler's guilty plea to the firearm count was no longer valid after Bailey. The government, however, withdrew its concession shortly after the Supreme Court issued its decision in Bousley v. United States, 523 U.S. 614 (1998) (holding that a petitioner belatedly raising a Bailey challenge to his guilty plea for violating § 924(c) must show "cause and prejudice" to avoid procedural default, or else demonstrate his actual innocence with regard to the § 924(c) charge and any other more serious charges dismissed during plea bargaining). Seeking reconsideration of the magistrate judge's recommendation, the government argued that Bousley limited Peveler's ability to challenge his firearm conviction.

The government insisted that Peveler had procedurally defaulted his due process claim by failing to assert it on direct appeal. Peveler could avoid this procedural default, according to the government, only by showing cause and prejudice for the default, or by demonstrating that he is actually innocent. Citing Bousley, the government further argued that, in terms of demonstrating actual innocence, Peveler had to show both that he did not actually commit the firearm offense charged in the superseding information (the count on which he pled guilty) and that he did not commit the firearm violations charged in the original indictment (counts that the government dismissed as part of Peveler's plea agreement). The government argued that Peveler committed the firearm offenses charged in the original indictment even under Bailey's interpretation of § 924(c).

Peveler could prevail on his due process claim, the district court agreed, only by showing his actual innocence regarding the firearm counts in both the superseding information and the original indictment. It then remanded the issue to the magistrate judge for a recommendation regarding whether Peveler was actually innocent of the firearm charges.

The magistrate judge conducted an evidentiary hearing in July of 1999. At the outset of the hearing, the government conceded that Peveler is actually innocent of the firearm charge in the superseding information. The hearing therefore focused on whether Peveler had committed the firearm charges contained in the original indictment; that is, whether Peveler used or carried a firearm in relation to drug trafficking crimes on November 12, 1992 and December 18, 1992.

Blanford, Peveler, and Peveler's codefendant Jamie Gross testified at the hearing before the magistrate judge. Both Peveler and Gross denied Peveler's guilt on the firearm charges in the original indictment. Blanford testified, however, that he saw firearms lying out in the open when purchasing marijuana from Peveler on November 12, 1992 and December 18, 1992. Crediting Blanford's testimony, the magistrate judge found that Peveler was not actually innocent on the two firearm charges in the original indictment because the firearms were displayed, and therefore actively employed, during the marijuana sales. The magistrate judge thus recommended that...