U.S. v. Holland, 96-1102

• Decision Date: 02 July 1997
• Docket Number: No. 96-1102,96-1102
• Citation: 116 F.3d 1353
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne HOLLAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1353

116 F.3d 1353

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne HOLLAND, Defendant-Appellant.

No. 96-1102.

United States Court of Appeals, Tenth Circuit.

July 2, 1997.

James P. Moran, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the briefs), Denver, CO, for Defendant-Appellant.

Charlotte J. Mapes, Assistant United States Attorney (Henry L. Solano, United States Attorney, with her on the brief), Denver, CO, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, BRORBY and KELLY, Circuit Judges.

SEYMOUR, Chief Judge.

Kenneth Wayne Holland was convicted of possession of cocaine with intent to distribute under 21 U.S.C. § 841(a)(1), and of using and carrying a firearm during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1). ¹ His convictions were affirmed on direct appeal. United States v. Holland, 10 F.3d 696 (10th Cir.1993). He subsequently brought a motion to vacate judgment and sentence under 28 U.S.C. § 2255, asserting that his section 924(c)(1) conviction is invalid under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which was decided after we affirmed of his conviction. Mr. Holland appeals the district court's denial of relief, and we affirm.

The facts underlying Mr. Holland's convictions are set out in detail in our opinion on direct appeal, and we therefore recite only those facts relevant to the disposition of the issue before us here. After a vehicle occupied by Mr. Holland and co-defendant Sevelt Kelly was pulled over on a routine traffic stop, police officers observed five rounds of ammunition on the vehicle's center console. Mr. Holland, who was driving, consented to a search of the car, which revealed a revolver registered to Mr. Kelly under the passenger seat plus drug paraphernalia and a small amount of cocaine found elsewhere in the vehicle. Both defendants possessed cash and pagers purchased by Mr. Holland, and Mr. Kelly also had three rounds of ammunition that matched the cylinder of the gun under the seat. Three ounces of cocaine in a cosmetic bag were found by the side of the road where the traffic stop occurred.

Mr. Holland was convicted of violating 18 U.S.C. § 924(c)(1), which imposes a mandatory minimum term of imprisonment upon a person who "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm." He now contends that his section 924(c)(1) conviction is invalid under the Supreme Court's construction of that statute in Bailey. Prior to the Bailey decision, this court had adopted a definition of "use" for purposes of section 924(c)(1) under which "a defendant 'uses' a firearm when it '(1) is readily accessible, (2) is an integral part of the criminal undertaking, and (3) increases the likelihood of success for that undertaking.' " Holland, 10 F.3d at 699 (quoting United States v. Conner, 972 F.2d 1172, 1173 (10th Cir.1992)). Under this definition we had upheld the section 924(c)(1) "use" conviction of the driver of a vehicle containing drugs and a gun under a bag on the passenger seat next to him. See United States v. McKinnell, 888 F.2d 669, 674-75 (10th Cir.1989).

In Bailey, the Supreme Court rejected such a broad definition of "use" and held that section 924(c)(1) "requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Bailey, 516 U.S. at ----, 116 S.Ct. at 505. Under this construction, "[a] defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds. Storage of a firearm, without its more active employment, is not reasonably distinguishable from possession." Id. at ----, 116 S.Ct. at 508. The Court also made clear that "use" does not extend to situations "where an offender conceals a gun nearby to be at the ready for an imminent confrontation.... Placement for later active use does not constitute 'use.' " Id. at ---- - ----, 116 S.Ct. at 508-09. It is clear that under the construction of "use" employed in Bailey, the evidence in this case is legally insufficient to support a conviction for using a firearm during and in relation to a drug trafficking offense under section 924(c)(1). We thus turn to Mr. Holland's argument that he is entitled to relief under section 2255.

We have held that Bailey applies retroactively to cases on collateral review. See United States v. Barnhardt, 93 F.3d 706, 708-09 (10th Cir.1996). In so doing, we relied on Supreme Court authority holding that "a petitioner collaterally attacking his conviction should be given the benefit of case law decided after his conviction when the conviction was 'for an act that the law does not make criminal.' " Id. at 709 (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2304, 41 L.Ed.2d 109 (1974)). We also relied on United States v. Dashney, 52 F.3d 298 (10th Cir.1995), in which we held that under Davis, "substantive changes in the law, as opposed to procedural changes, apply retroactively." Barnhardt, 93 F.3d at 709. In light of those cases, we concluded:

Bailey establishes a new non-constitutional rule of substantive law which may produce a different result under the facts of this case than that dictated by prior law. In other words, actions that were criminal pre-Bailey may no longer be such. Therefore, we hold that Bailey applies retroactively to convictions under 18 U.S.C. § 924(c)(1).

Id. The conviction in Barnhardt was the result of a guilty plea rather than a jury trial, however, and we pointed out that Bailey 's application in those circumstances was not governed by cases applying Bailey following a jury trial. Id. Because Mr. Holland was convicted by a jury, we turn to the cases applying Bailey in those circumstances.

As an initial matter, we recognize that a federal prisoner who has defaulted the claim he seeks to assert in a section 2255 motion must ordinarily show cause for his default and actual prejudice resulting from the error he asserts. United States v. Shelton, 848 F.2d 1485, 1490 (10th Cir.1988) (en banc). Shelton, like the present case, involved a section 2255 proceeding asserting the retroactive application of a substantive non-constitutional decision of the Supreme Court narrowing the reach of a federal criminal statute. Id. at 1489. We noted in Shelton, id. at 1490 n. 4, that because a conviction for conduct that is not criminal would result in a complete miscarriage of justice, see Davis, 417 U.S. at 346-47, 94 S.Ct. at 2304-05 a compelling argument can be made that a showing of cause is not required. See Dashney, 52 F.3d at 299. We nevertheless assessed cause in Shelton, as we do here.

A petitioner has cause for having failed to raise a claim when it had no reasonable basis in existing law, a standard satisfied when "a Supreme Court decision overturns 'a longstanding and widespread practice to which [the Supreme Court] has not spoken, but which a near-unanimous body of lower court authority has expressly approved.' " Shelton, 848 F.2d at 1490 (quoting Reed v. Ross, 468 U.S. 1, 17, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984) (internal quotation omitted)). Here, although the circuits had adopted various constructions of the "use" prong, see Bailey, 516 U.S. at ----, 116 S.Ct. at 505, they were less stringent than that articulated in Bailey and the circumstances in this case would have satisfied virtually all of them. Accordingly, we hold that Mr. Holland has shown cause for failing to raise the claim earlier.

We therefore must determine whether Mr. Holland has established actual prejudice resulting from the erroneous construction of "use" employed at trial. Mr. Holland was charged with both using and carrying a firearm during and in relation to a drug trafficking offense. The trial court instructed the jury that:

To find use, it is not required that you find defendant brandished or displayed or discharged the firearm; nor that the defendant had actual possession of either the firearm or the drugs; nor that the firearm was loaded; nor that a drug transaction occurred at the place where the drugs were found; nor that the sole purpose of the firearm was to protect the drug operation. Use is established when the defendant has ready access to the firearm and the firearm was an integral part of his criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed. The ready access element requires evidence that the firearm was available to the defendant in the vicinity where the drug trafficking offense took place. However, to find use, you must find that the defendant actually and knowingly possessed the firearm as possession is defined elsewhere in these instructions.

Rec., vol. 5 at 449-50. This definition of "use" is, of course, incorrect under Bailey.

However, the indictment charged that Mr. Holland "did use and carry a firearm during and in relation to a drug trafficking crime," id. at 439 (emphasis added), and the court instructed the jury with respect to "carry" that:

[A] firearm may be carried simply by being carried in a vehicle as part of and in relation to a drug trafficking offense, so long as the defendant actually and knowingly possessed or intentionally had dominion and control over the weapon, by himself or together with another in the vehicle, while committing a drug trafficking offense.

Id. at 450. ² On appeal, the government contends that Mr. Holland is unable to show the requisite prejudice to support collateral relief because the evidence was sufficient to sustain his conviction for carrying under a proper instruction. We agree that Mr. Holland is not entitled to relief, although we reach our conclusion on a different ground than that urged by the government.

We are guided in our analysis by Justice Scalia's concurring opinion in California v. Roy, --- U.S. ----, 117...