US v. Forrest

• Citation: 934 F. Supp. 731
• Decision Date: 29 July 1996
• Docket Number: CR. No. 2:95cr85. Civil Action No. 2:96cv368.
• Parties: UNITED STATES of America v. Wanda Denise FORREST.
• Court: U.S. District Court — Eastern District of Virginia

934 F. Supp. 731

UNITED STATES of America v. Wanda Denise FORREST.

CR. No. 2:95cr85. Civil Action No. 2:96cv368.

United States District Court, E.D. Virginia, Norfolk Division.

July 29, 1996.

Arenda L. Wright Allen, U.S. Attorney's Office, Norfolk, VA, for Plaintiff.

Keith Kimball, Virginia Beach, VA, for Defendant.

ORDER

CLARKE, District Judge.

This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons discussed below, the Court GRANTS Petitioner's motion and vacates her conviction under 18 U.S.C. § 924(c)(1).

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 14, 1995, Petitioner Wanda Denise Forrest pled guilty to (1) conspiracy to distribute "crack" cocaine, in violation of 21 U.S.C. § 846 (Count I), and (2) use¹ of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count III). As the factual basis for the plea, the Assistant United States Attorney offered the following evidence.² On May 6, 1994, several Chesapeake police officers executed a search warrant at the residence of Petitioner and her co-conspirator, Arthur Lee Parker. The officers knocked on a door adjacent to the kitchen area and announced their presence as police officers. Parker fled to the bedroom and closed the door in an attempt to prevent the police from entering. The police searched the apartment and found 220 grams of crack cocaine and eleven firearms, two of which were loaded. According to the facts in the Presentence Investigation Report (PSR) which was prepared for Petitioner's sentencing,³ these eleven guns were located as follows: one was under the mattress, one was behind the headboard, and nine were recovered from inside a chest of drawers. PSR ¶ 6. Petitioner admitted ownership of one of the handguns that was discovered.

The police subsequently executed another search warrant at the same apartment on October 12, 1994, where they found 51 grams of crack cocaine and two loaded firearms. These two firearms were found next to a shoe box top, which was located behind a dresser. PSR ¶ 8. At the end of the government's proffer, Petitioner agreed that all the factual information related by the Assistant United States Attorney was accurate. Tr. of Guilty Plea at 47-48.

On December 13, 1995, Petitioner was sentenced to 120 months of imprisonment on Count I and 60 months on Count III to run consecutively to Count I. Petitioner did not appeal.

Petitioner filed the present § 2255 motion on April 11, 1996. In her motion, Petitioner asks the Court to vacate the portion of her conviction and sentence imposed under 18 U.S.C. § 924(c)(1). She bases her claim on the recent Supreme Court decision, Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which clarified the meaning and application of the word "use" found in § 924(c)(1), and on Abreu v. United States, 911 F.Supp. 203 (E.D.Va.1996) (Ellis, J.), an Eastern District of Virginia case in which Bailey was applied retroactively. She has requested a hearing on the matter. Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, the Court instructed the government to answer Petitioner's motion and granted Petitioner time in which to reply to the government. The government's response was received on April 26, 1996. No reply has been received from Petitioner. Consequently, the matter is now ready for consideration.

II. ANALYSIS

A. Scope and Standard of Review

The scope of a § 2255 collateral attack is far more limited than an appeal and thus, a "collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). Procedural default will bar consideration under § 2255 of any matter that could have been pressed on appeal but was not, unless the requisite showing of "cause" for the default and "actual prejudice" resulting from the error is made. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982); see also Davis v. United States, 411 U.S. 233, 239, 93 S.Ct. 1577, 1581, 36 L.Ed.2d 216 (1973) (citing Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969)) (collateral challenge cannot be denied solely because petitioner failed to appeal). Furthermore, a Court may grant collateral relief under § 2255 only where the putative error is jurisdictional, constitutional, or an error of law which inherently resulted in a complete miscarriage of justice. United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979).

B. Conviction under 18 U.S.C. § 924(c)(1)

Petitioner argues that her conviction and sentence under 18 U.S.C. § 924(c)(1) should be vacated as a result of the Supreme Court's recent decision in Bailey. Section 924(c)(1) requires the imposition of certain penalties if "during or in relation to any ... drug trafficking crime ... the defendant uses or carries a firearm." In Bailey, the Supreme Court explained that the term "`use' must connote more than mere possession of a firearm by a person who commits a drug offense." ___ U.S. at ___, 116 S.Ct. at 506. The "inert presence" of a firearm is insufficient to trigger the statute. Id. at ___, 116 S.Ct. at 508. Thus, "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.

In this case, the guns at issue were located under a mattress, behind a headboard, in a chest of drawers, and behind a dresser. No factual evidence was presented which indicates that Petitioner actively employed her gun during the course of a drug sale. Under Bailey, therefore, this evidence is insufficient to support a conviction for the "use" of a firearm during a drug trafficking crime. A number of courts have applied Bailey retroactively. E.g., Abreu, 911 F.Supp. 203; United States v. Fletcher, 919 F.Supp. 384 (D.Kan.1996); United States v. Turner, 914 F.Supp. 48 (W.D.N.Y.1996); United States v. Brown, 914 F.Supp. 1380 (E.D.La.1996); see also United States v. Bonnette, 781 F.2d 357, 362 (4th Cir.1986) (a decision may apply retroactively "when a court reinterprets a criminal statute so as to narrow it, thus essentially repealing the statute as to some defendants"). Consequently, Bailey will apply retroactively in Petitioner's case if she can make the requisite showing of cause and prejudice.⁴

Petitioner argues that she is able to establish cause for her procedural default. Adequate cause exists where the petitioner "fails to make an objection in the original proceeding if the basis for the objection was not known until after the petitioner's conviction became final." Abreu, 911 F.Supp. at 207 (citing Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984)). Petitioner pled guilty to the firearm charge prior to the Bailey decision. At that time, under Fourth Circuit precedent, the evidence in her case would have supported a conviction under § 924(c)(1). See United States v. Paz, 927 F.2d 176, 179 (4th Cir.1991); United States v. Brockington, 849 F.2d 872, 876 (4th Cir. 1988). Petitioner was sentenced one week after Bailey was decided by the Supreme Court. Thus, this issue could have been raised at the sentencing hearing if Petitioner or her counsel had been aware of the decision immediately after its entry. Petitioner's attorney, however, states that he did not learn of the Bailey decision until shortly after the sentencing hearing. The government has not argued that Petitioner's excuse for failing to raise the issue earlier should not be accepted. Accordingly, the Court finds that Petitioner has established cause for her procedural default.

Petitioner also maintains that she can establish prejudice. She claims that "she has been prejudiced by the error of pleading guilty to a violation of 18 U.S.C. § 924(c)(1)." Pet.'s Mot. at 8. The government, however, argues that because Petitioner pled guilty to the offense, she cannot challenge the factual basis of her plea, and thus, notwithstanding Bailey, her plea cannot be altered. Gov.'s Resp. at 4. This position, however, is incorrect under the facts and circumstances of this case. A guilty plea may be rendered invalid if it was involuntary. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1960) ("A guilty plea that is not both voluntary and knowing is in violation of due process and is thus void."); Abreu, 911 F.Supp. at 207. In order for a guilty plea to be considered voluntary, the defendant must possess an understanding of the relevant law in relation to the facts of her case. McCarthy, at 466, 89 S.Ct. at 1171. Thus, if Petitioner's "misunderstanding of the law regarding section 924(c)(1), as it relates to the factual circumstances surrounding her case, induced her to plead guilty, her conviction was without a factual basis and, consequently, was invalid." United States v. Crawford, 932 F.Supp. 748 (E.D.Va.1996) (Smith, J.); accord Abreu, 911 F.Supp. at 207; see also Fletcher, 919 F.Supp. at 388 (permitting the defendant to raise a jurisdictional defect via a § 2255 motion where he pled guilty "to something which was not a crime"). Thus, under the rationale of Crawford and Abreu, Petitioner's plea of guilty to § 924(c)(1) is invalid. Because she received the mandatory consecutive five year minimum sentence on this count, Petitioner has been prejudiced by her plea of guilty.

C. Enhancement of Count I under Sentencing Guidelines

The government also argues that if the Court finds that Bailey does apply to Petitioner's case, thus requiring Count III to be vacated, the Court should hold Petitioner accountable for the firearms by enhancing her sentence under Count I. The government suggests that the evidence presented at the guilty...