U.S. v. Apker

• Decision Date: 19 April 1999
• Docket Number: No. 96-2384,96-2384
• Citation: 174 F.3d 934
• Parties: UNITED STATES of America, Appellee, v. Gary APKER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 934

174 F.3d 934

UNITED STATES of America, Appellee, v. Gary APKER, Appellant.

No. 96-2384.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 10, 1999.

Filed April 19, 1999.

David R. Stickman, Omaha, NE, argued, for Appellant.

Thomas J. Monaghan, U.S. Attorney, Omaha, NE, argued (Daniel A. Morris, on the brief), for Appellee.

Before: BOWMAN, Chief Judge, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BOWMAN, Chief Judge.

This case is before us on remand from the United States Supreme Court. See Apker v. United States, --- U.S. ----, 118 S.Ct. 2339, 141 L.Ed.2d 710 (1998), vacating and remanding 101 F.3d 75 (8th Cir.1996), opinion vacated and mandate recalled, 156 F.3d 1344 (8th Cir.1998). We are instructed to further consider the 28 U.S.C. § 2255 motion of Gary Apker in light of Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998), in which the Government conceded that a § 2255 motion alleging a Bailey error amounted to a constitutional claim for the purposes of 28 U.S.C. § 2253(c)(2). Apker is in federal custody pursuant to his conditional guilty plea and resulting conviction on the charge of using or carrying a firearm equipped with a silencer or muffler during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c). He appeals from the judgment of the District Court dismissing his § 2255 motion for procedural default. Recognizing that this case rests at the confluence of recent Supreme Court decisions, we reverse the judgment of the District Court and remand the case for further proceedings consistent with this opinion.

We begin with only a brief description of the criminal activity that resulted in Apker's eventual plea of guilty to a single violation of § 924(c), and then move to the procedural history of the case. More thorough recitations of the facts surrounding this case are reported at United States v. Friend, 101 F.3d 557 (8th Cir.1996), and United States v. Lucht, 18 F.3d 541 (8th Cir.1994).

A lengthy investigation of a large-scale conspiracy to distribute methamphetamine involving Apker and other members of the Omaha Chapter of the Hell's Angels Motorcycle Club culminated in October 1990 with the execution of search warrants at the homes of Apker and other club members. The search of Apker's home revealed a hidden safe containing a firearm equipped with a silencer, ten pounds of methamphetamine, a large amount of cutting agent, and approximately $200,000 in cash.

A thirty-three-count superseding indictment charged Apker and his co-defendants with conspiring to distribute and possess with the intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment also alleged numerous related crimes, including that Apker used or carried a firearm equipped with a silencer or muffler during and in relation to a drug trafficking crime in violation of § 924(c). In exchange for the Government's promise to dismiss the indictment as it pertained to Apker, Apker agreed to enter a conditional plea of guilty to a one-count information charging him with a single violation of § 924(c).

Consistent with the plea agreement, Apker entered a conditional plea of guilty in the District Court and reserved the right to appeal the court's previous denial of certain motions to suppress evidence. At the change of plea hearing, the court carefully explained the elements of the § 924(c) violation and repeatedly confirmed that Apker understood the court's explanation. Furthermore, the court explained to Apker that mere possession of a firearm with a silencer "in and of itself wouldn't constitute sufficient evidence to convict you of the crime with which you are charged. You've got to have actually used or carried that firearm in the commission of a drug trafficking crime, all as I have heretofore explained to you." Hearing Tr. at 81. Finally, the court informed Apker that his guilty plea must be entered with knowledge of all the matters contained in Apker's plea petition and discussed at the plea hearing. Apker responded that he understood and maintained his conditional plea of guilty.

The court accepted Apker's plea and sentenced him to thirty years in federal prison and five years of supervised release. On direct appeal, Apker challenged the District Court's adverse suppression rulings, but did not challenge the validity of his plea. We affirmed the suppression rulings of the District Court. See Lucht, 18 F.3d at 546-50.

Nearly two years later, the Supreme Court decided in Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), that the term "uses" in § 924(c) requires "active employment" of a firearm and, therefore, rejected the less rigorous standard that was the settled law of this Circuit. See United States v. Hellbusch, 147 F.3d 782, 783 (8th Cir.1998) (recognizing Bailey 's rejection of the "mere presence, availability or proximity" standard).

Claiming that his conviction was defective in light of Bailey, Apker filed a motion to vacate his sentence and withdraw his guilty plea pursuant to § 2255 and Federal Rule of Criminal Procedure 32(e). The District Court dismissed the motion with prejudice because Apker, by pleading guilty, had waived all non-jurisdictional challenges, including any claim of factual innocence and any right to challenge the meaning of the terms of § 924(c).

Apker then sought review of the denial of his § 2255 motion in this Court. We denied Apker the certificate of appealability necessary for his appeal under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2253(c)(1), ¹ because Apker did not assert the denial of a constitutional right as required by AEDPA, 28 U.S.C. § 2253(c)(2). ² See Apker, 101 F.3d at 75. For this determination, we relied upon Hohn v. United States, 99 F.3d 892 (8th Cir.1996) (per curiam), reversed, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998), in which this Court held that a § 2255 claim of Bailey error is not a constitutional claim for the purposes of AEDPA because "Bailey did no more than interpret a statute, and an incorrect application of a statute by a district court, or any other court, does not violate the Constitution." Hohn, 99 F.3d at 893. Apker thereafter petitioned for certiorari to the United States Supreme Court.

While Apker's petition for certiorari was pending, the Supreme Court vacated and remanded our decision in Hohn because "the Government now found itself in agreement with Hohn, saying his claim was, in fact, constitutional in nature." Hohn, 118 S.Ct. at 1972. One week later, the Supreme Court granted Apker's petition for certiorari, vacated our judgment, and remanded Apker's case to this Court for further consideration in light of the Government's concession in Hohn. See Apker, --- U.S. at ----, 118 S.Ct. at 2339. We thereupon granted Apker the certificate of appealability necessary for his appeal of the judgment of the District Court denying his § 2255 motion. That appeal is now before us.

We review de novo the District Court's denial of Apker's § 2255 motion. See Blankenship v. United States, 159 F.3d 336, 337 (8th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 844, 142 L.Ed.2d 699 (1999); Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir.1992).

For reversal, Apker argues that, in light of Bailey and Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 1917, 141 L.Ed.2d 111 (1998) (stating that the term "carries" in § 924(c) "implies personal agency and some degree of possession"), the parties, counsel, and the hearing court all misunderstood the terms "uses" and "carries" in § 924(c) at the time Apker pleaded guilty. Apker argues, therefore, that the hearing court did not adequately advise Apker of the exact nature of the § 924(c) charge, the guilty plea was not knowing and voluntary as required by due process, and the hearing court did not have a legally sufficient factual basis for accepting the guilty plea.

The District Court rejected similar arguments ³ made in Apker's § 2255 motion because they were not jurisdictional arguments and, therefore, were waived when Apker entered a valid plea of guilty. See Walker v. United States, 115 F.3d 603, 604 (8th Cir.1997) ("The general rule is that a valid guilty plea waives all non-jurisdictional defects."); Mack v. United States, 853 F.2d 585, 586 (8th Cir.1988) ("[A] plea of guilty ... waives all challenges to the prosecution either by direct appeal or by collateral attack, except challenges to the court's jurisdiction."). Furthermore, although the validity of a guilty plea--that is, whether the plea is knowing and voluntary--generally may be reviewed collaterally, see United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (noting that collateral inquiry into a guilty plea "is ordinarily confined to whether the underlying plea was both counseled and voluntary"), Apker failed to challenge the validity of his plea on direct appeal and, therefore, has waived any such claim in this collateral proceeding, see Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998) ("[E]ven the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.").

Apker does not deny that his § 2255 claims are procedurally defaulted, but argues instead that he should be given the opportunity to overcome the default by demonstrating his actual innocence. ⁴ For this proposition, Apker relies upon Bousley, which was decided during the pendency of Apker's petition for certiorari. In Bousley, the Supreme Court determined that, when a § 2255 petitioner has procedurally defaulted his claim that a Bailey error resulted in an involuntary and unintelligent guilty plea, the merits of the petitioner's claim may be collaterally reviewed "if he can establish that the constitutional error in his plea colloquy 'has probably resulted in the...