|
Bousley v. United States |
CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR
THE EIGHTH CIRCUIT
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,
not its mere possession, id. at 143.
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. 618-624.
(a)
Only a voluntary and intelligent guilty plea is constitutionally valid. Brady
v. United States, 397 U.S. 742, 748.
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.
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, and Parker
v. North Carolina, 397 U.S. 790, distinguished. Pp. 618-619.
(b)
The rule of Teague
v. Lane, 489 U.S. 288 -- that new constitutional rules of criminal
procedure are generally not applicable to cases that [523 U.S. 615] 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. 619-621.
(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,
or that he is "actually innocent," id.
at 496.
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. 621-624.
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, post, p. 625.
SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 629.
[523 U.S. 616]
REHNQUIST, J., lead opinion
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
(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 [523
U.S. 617] 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 (CA8 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.
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,
but does not include mere possession of a firearm, id.
at 143.
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.
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 [523 U.S. 618]
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 (CA8 1996).
We
then granted certiorari, 521 U.S. 1152 (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. 990 (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
(1970). We have long held that a plea does not qualify as intelligent unless a
criminal defendant first receives "real notice of the true nature of the
charge against him, the first and most universally recognized requirement of
due process." Smith
v. O'Grady, 312 U.S. 329, 334
(1941). Amicus contends that petitioner's plea
was intelligently made because, prior to pleading guilty, he was provided with
a copy of his indictment, which charged him with "using" a firearm.
Such circumstances, standing alone, give rise to a presumption that the
defendant was informed of the nature of the charge against him. Henderson
v. Morgan, 426 U.S. 637, 647
(1976); id. at 650
(White, J., concurring). Petitioner nonetheless maintains that his guilty plea
was unintelligent because the District Court subsequently misinformed him as to
the elements of a § 924(c)(1) offense. In other words, petitioner contends that
the record reveals that neither he, nor his counsel, nor the court correctly
understood the essential elements of the crime with which he was charged. Were [523 U.S. 619] this contention
proven, petitioner's plea would be, contrary to the view expressed by the Court
of Appeals, constitutionally invalid.
Our
decisions in Brady v. United States, supra, McMann
v. Richardson, 397 U.S. 759 (1970), and Parker
v. North Carolina, 397 U.S. 790 (1970), relied upon by amicus, are not to the contrary. Each of those cases
involved a criminal defendant who pleaded guilty after being correctly informed
as to the essential nature of the charge against him. See Brady, 397 U.S. at 756;
McMann, 397 U.S. at 767;
Parker, 397 U.S. at 792.
Those defendants later attempted to challenge their guilty pleas when it became
evident that they had misjudged the strength of the Government's case or the
penalties to which they were subject. For example, Brady, who pleaded guilty to
kidnapping, maintained that his plea was neither voluntary nor intelligent
because it was induced by a death penalty provision later held
unconstitutional. 397 U.S. at 744.
We rejected Brady's voluntariness argument, explaining that a "plea of
guilty entered by one fully aware of the direct consequences" of the plea
is voluntary in a constitutional sense
|
unless induced by threats . . . , misrepresentation .
. . , or perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor's business. |
Id.
at 755
(internal quotation marks omitted). We further held that Brady's plea was
intelligent because, although later judicial decisions indicated that, at the
time of his plea, he "did not correctly assess every relevant factor
entering into his decision," id. at 757,
he was advised by competent counsel, was in control of his mental faculties,
and "was made aware of the nature of the charge against him," id. at 756.
In this case, by contrast, petitioner asserts that he was misinformed as to the
true nature of the charge against him.
Amicus urges us to apply the rule of Teague
v. Lane, 489 U.S. 288 (1989), to petitioner's claim that his plea was
not knowing and intelligent. In Teague, we
held that "new constitutional rules of criminal procedure will not be
applicable [523 U.S. 620]
to those cases which have become final before the new rules are
announced," id. at 310,
unless the new rule "places `certain kinds of primary, private individual
conduct beyond the power of the criminal lawmaking authority to
proscribe,'" id. at 311
(quoting Mackey
v. United States, 401 U.S. 667, 692
(1971) (Harlan, J., concurring in part and dissenting in part)), or could be
considered a "watershed rul[e] of criminal procedure," 489 U.S. at 311.
But we do not believe that Teague governs this
case. The only constitutional claim made here is that petitioner's guilty plea
was not knowing and intelligent. There is surely nothing new about this
principle, enumerated as long ago as Smith v.
O'Grady, supra. And, because Teague, by
its terms, applies only to procedural rules, we think it is inapplicable to the
situation in which this Court decides the meaning of a criminal statute enacted
by Congress.
This
distinction between substance and procedure is an important one in the habeas
context. The Teague doctrine is founded on the
notion that one of the
|
principal functions of habeas corpus [is] "to
assure that no man has been incarcerated under a procedure which creates an
impermissibly large risk that the innocent will be convicted." |
Teague,
489 U.S. at 312
(quoting Desist
v. United States, 394 U.S. 244, 262
(1969)). Consequently, unless a rule of criminal procedure is of such a nature
that, "without [it], the likelihood of an accurate conviction is seriously
diminished," 489 U.S. at 313,
there is no reason to apply the rule retroactively on habeas review. By contrast,
decisions of this Court holding that a substantive federal criminal statute
does not reach certain conduct, like decisions placing conduct "`beyond
the power of the criminal lawmaking authority to proscribe,'" id. at 311
(quoting Mackey, 401 U.S. at 692),
necessarily carry a significant risk that a defendant stands convicted of
"an act that the law does not make criminal." Davis
v. United States, 417 U.S. 333, 346
(1974). For, under our federal system, it is [523 U.S. 621] only Congress, and not the courts, which
can make conduct criminal. United
States v. Lanier, 520 U.S. 259, 267-268,
n. 6 (1997); United
States v. Hudson, 7 Cranch 32 (1812). Accordingly, it would be
inconsistent with the doctrinal underpinnings of habeas review to preclude
petitioner from relying on our decision in Bailey
in support of his claim that his guilty plea was constitutionally invalid.
Though
petitioner's claim is not Teague-barred, there
are nonetheless significant procedural hurdles to its consideration on the
merits. We have strictly limited the circumstances under which a guilty plea
may be attacked on collateral review.
|
It is well settled that a voluntary and intelligent
plea of guilty made by an accused person, who has been advised by competent
counsel, may not be collaterally attacked. |
Mabry
v. Johnson, 467 U.S. 504, 508
(1984) (footnote omitted). And even the voluntariness and intelligence of a
guilty plea can be attacked on collateral review only if first challenged on
direct review. Habeas review is an extraordinary remedy, and "`will not be
allowed to do service for an appeal.'" Reed
v. Farley, 512 U.S. 339, 354
(1994) (quoting Sunal
v. Large, 332 U.S. 174, 178
(1947)). Indeed, "the concern with finality served by the limitation on
collateral attack has special force with respect to convictions based on guilty
pleas." United
States v. Timmreck, 441 U.S. 780, 784
(1979). In this case, petitioner contested his sentence on appeal, but did not
challenge the validity of his plea. In failing to do so, petitioner
procedurally defaulted the claim he now presses on us.
In
an effort to avoid this conclusion, petitioner contends that his claim falls
within an exception to the procedural default rule for claims that could not be
presented without further factual development. Brief for Petitioner 28-34. In Waley
v. Johnston, 316 U.S. 101 (1942) (per curiam), we held that there was
such an exception for a claim that a plea of guilty had been coerced by threats
made by a Government [523 U.S.
622] agent, when the facts were "dehors the record and their effect
on the judgment was not open to consideration and review on appeal." Id. at 104.
Petitioner's claim, however, differs significantly from that advanced in Waley. He is not arguing that his guilty plea was
involuntary because it was coerced, but rather that it was not intelligent
because the information provided him by the District Court at his plea colloquy
was erroneous. This type of claim can be fully and completely addressed on
direct review based on the record created at the plea colloquy.
Where
a defendant has procedurally defaulted a claim by failing to raise it on direct
review, the claim may be raised in habeas only if the defendant can first
demonstrate either "cause" and actual "prejudice," Murray
v. Carrier, 477 U.S. 478, 485
(1986); Wainwright
v. Sykes, 433 U.S. 72, 87
(1977), or that he is "actually innocent," Murray,
477 U.S. at 496;
Smith
v. Murray, 477 U.S. 527, 537
(1986).
Petitioner
offers two explanations for his default in an attempt to demonstrate cause.
First, he argues that "the legal basis for his claim was not reasonably
available to counsel" at the time his plea was entered. Brief for
Petitioner 35. This argument is without merit. While we have held that a claim
that "is so novel that its legal basis is not reasonably available to
counsel" may constitute cause for a procedural default, Reed
v. Ross, 468 U.S. 1, 16
(1984), petitioner's claim does not qualify as such. The argument that it was
error for the District Court to misinform petitioner as to the statutory
elements of § 924(c)(1) was most surely not a novel one. See Henderson, 426 U.S. at 645-646.
Indeed, at the time of petitioner's plea, the Federal Reporters were replete
with cases involving challenges to the notion that "use" is
synonymous with mere "possession." See,
e.g., United States v. Cooper, 942 F.2d 1200, 1206 (CA7 1991) (appeal
from plea of guilty to "use" of a firearm in violation of [523 U.S. 623] § 924(c)(1)), cert. denied, 503 U.S. 923 (1992).{2}
Petitioner also contends that his default should be excused because,
"before Bailey, any attempt to attack
[his] guilty plea would have been futile." Brief for Petitioner 35. This
argument too is unavailing. As we clearly stated in Engle
v. Isaac, 456 U.S. 107 (1982), "futility cannot constitute cause if
it means simply that a claim was `unacceptable to that particular court at that
particular time.'" Id. at 130,
n. 35. Therefore, petitioner is unable to establish cause for his default.
Petitioner's
claim may still be reviewed in this collateral proceeding if he can establish
that the constitutional error in his plea colloquy "has probably resulted
in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. at 496.
To establish actual innocence, petitioner must demonstrate that, "`in
light of all the evidence,'" "it is more likely than not that no
reasonable juror would have convicted him." Schlup
v. Delo, 513 U.S. 298, 327-328
(1995) (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U.Chi.L.Rev 142, 160 (1970)). The District Court failed
to address petitioner's actual innocence, perhaps because petitioner failed to
raise it initially in his § 2255 motion. However, the Government does not
contend that petitioner waived this claim by failing to raise it below.
Accordingly, we believe it appropriate to remand this case to permit petitioner
to attempt to make a showing of actual innocence.
It
is important to note in this regard that "actual innocence" means
factual innocence, not mere legal insufficiency. [523 U.S. 624] See Sawyer
v. Whitley, 505 U.S. 333, 339
(1992). In other words, the Government is not limited to the existing record to
rebut any showing that petitioner might make. Rather, on remand, the Government
should be permitted to present any admissible evidence of petitioner's guilt,
even if that evidence was not presented during petitioner's plea colloquy and
would not normally have been offered before our decision in Bailey.{3}
In cases where the Government has forgone more serious charges in the course of
plea bargaining, petitioner's showing of actual innocence must also extend to
those charges.
In
this case, the Government maintains that petitioner must demonstrate that he is
actually innocent of both "using" and "carrying" a firearm
in violation of § 924(c)(1). But petitioner's indictment charged him only with
"using" firearms in violation of § 924(c)(1). App. 5-6. And there is
no record evidence that the Government elected not to charge petitioner with
"carrying" a firearm in exchange for his plea of guilty. Accordingly,
petitioner need demonstrate no more than that he did not "use" a
firearm as that term is defined in Bailey.
If,
on remand, petitioner can make that showing, he will then be entitled to have
his defaulted claim of an unintelligent plea considered on its merits. The
judgment of the Court of Appeals is therefore reversed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered. [523 U.S. 625]
STEVENS, J., concurring and dissenting
JUSTICE
STEVENS, concurring in part and dissenting in part.
While
I agree with the Court's central holding and with its conclusion that none of
its judge-made rules forecloses petitioner's collateral attack on his
conviction under 18 U.S.C. § 924(c), I believe there is a flaw in its analysis
that will affect the proceedings on remand. Given the fact that the record now
establishes that the plea of guilty to the § 924(c) charge was constitutionally
invalid, petitioner remains presumptively innocent of that offense.
Accordingly, unless he again pleads guilty, the burden is on the Government to
prove his unlawful use of a firearm.
I
This
case does not raise any question concerning the possible retroactive
application of a new rule of law, cf. Teague
v. Lane, 489 U.S. 288 (1989), because our decision in Bailey
v. United States, 516 U.S. 137 (1995), did not change the law. It merely
explained what § 924(c) had meant ever since the statute was enacted. The fact
that a number of Courts of Appeals had construed the statute differently is of
no greater legal significance than the fact that 42 U.S.C. § 1981 had been
consistently misconstrued prior to our decision in Patterson
v. McLean Credit Union, 491 U.S. 164 (1989). Our comment on the
significance of the pre-Patterson
jurisprudence applies equally to the pre-Bailey
cases construing § 924(c):
|
Patterson did not
overrule any prior decision of this Court; rather, it held and therefore
established that the prior decisions of the Courts of Appeals which read §
1981 to cover discriminatory contract termination were incorrect. They were not wrong according to some
abstract standard of interpretive validity, but by the rules that necessarily
govern our hierarchical federal court system. Cf. |
Rivers
v. Roadway Express, Inc., 511 U.S. 298, 312-313
(1994).
Thus,
in 1990, when petitioner was advised by the trial judge, by his own lawyer, and
by the prosecutor that mere possession of a firearm would support a conviction
under § 924(c), he received critically incorrect legal advice. The fact that
all of his advisers acted in good faith reliance on existing precedent does not
mitigate the impact of that erroneous advice. Its consequences for petitioner
were just as severe, and just as unfair, as if the court and counsel had
knowingly conspired to deceive him in order to induce him to plead guilty to a
crime that he did not commit. Our cases make it perfectly clear that a guilty
plea based on such misinformation is constitutionally invalid. Smith
v. O'Grady, 312 U.S. 329, 334
(1941); Henderson
v. Morgan, 426 U.S. 637, 644-645
(1976). Petitioner's conviction and punishment on the § 924(c) charge
|
are for an act that the law does not make criminal.
There can be no room for doubt that such a circumstance "inherently
results in a complete miscarriage of justice" and "present[s]
exceptional circumstances" that justify collateral relief under [28
U.S.C.] § 2255. |
Davis
v. United States, 417 U.S. 333, 346-347
(1974).
II
The
Government charges petitioner with "procedural default" because he
did not challenge his guilty plea on direct appeal. The Court accepts this
argument, and therefore places the burden on petitioner to demonstrate either
"cause [523 U.S. 627]
and prejudice" or "actual innocence." See
ante at 622.
Yet the Court cites no authority for its conclusion that "even the
voluntariness and intelligence of a guilty plea can be attacked on collateral
review only if first challenged on direct review." Ante at 621.{1}
Moreover, the primary case upon which the Government relies, United
States v. Timmreck, 441 U.S. 780 (1979), actually supports the contrary
proposition: that a constitutionally invalid guilty plea may be set aside on
collateral attack whether or not it was challenged on appeal.
Several
years before we decided Timmreck, the Court
had held that it is reversible error for a trial judge to accept a guilty plea
without following the procedures dictated by Rule 11 of the Federal Rules of
Criminal Procedure. McCarthy
v. United States, 394 U.S. 459 (1969). The question in Timmreck was whether such an error was sufficiently
serious to support a collateral attack under 28 U.S.C. § 2255. Because the
error was neither jurisdictional nor constitutional, we held that collateral
relief was unavailable. If we had thought that the failure to challenge the
constitutionality of a guilty plea on direct appeal amounted to procedural
default, there would have been no need in Timmreck
to rely on the critical difference between reversible error and the more
fundamental kind of error that can be corrected on collateral review. The
opinion makes it clear that an ordinary Rule 11 violation must be challenged on
appeal; the only criterion [523
U.S. 628] for collateral review that it mentions is that the error must
be jurisdictional or constitutional.{2}
Decisions
of this Court that do not involve guilty pleas are not controlling. For example,
in United
States v. Frady, 456 U.S. 152 (1982), two of the Court's reasons for
dismissing the § 2255 claim alleging that the jury instructions were erroneous
are not present in this case. First, the defendant failed to object to the jury
instructions -- as required by Federal Rule of Civil Procedure 30 -- before the
jury retired to consider its verdict; no comparable Rule applies to
petitioner's claim. Second, as the Court emphasized by quoting from both United
States v. Addonizio, 442 U.S. 178, 184-185
(1979), and Henderson
v. Kibbe, 431 U.S. 145, 154
(1977), the prejudice to the defendant was not sufficient to warrant relief
under § 2255; that is plainly not the case with respect to this petitioner.
Similarly, in Davis
v. United States, 411 U.S. 233, 242
(1973), there was a failure to comply with Federal [523 U.S. 629] Rule of Civil Procedure 12(b)(2), which
required challenges to the composition of the grand jury to be made by pretrial
motion -- a Rule that has no counterpart in the guilty plea context -- coupled
with the absence of the kind of prejudice that is present here.
The
Court has never held that the constitutionality of a guilty plea cannot be
attacked collaterally unless it is first challenged on direct review. Moreover,
as the facts of this case demonstrate, such a holding would be unwise and would
defeat the very purpose of collateral review. A layman who justifiably relied
on incorrect advice from the court and counsel in deciding to plead guilty to a
crime that he did not commit will ordinarily continue to assume that such
advice was accurate during the time for taking an appeal. The injustice of his
conviction is not mitigated by the passage of time. His plea should be treated
as a nullity and the conviction based on such a plea should be voided.
Because
the record in this case already unambiguously demonstrates that petitioner's
plea to the § 924(c) charge is invalid as a matter of constitutional law, I
would remand with directions to vacate his § 924(c) conviction and allow him to
plead anew.
SCALIA, J., dissenting
JUSTICE
SCALIA, with whom JUSTICE THOMAS joins, dissenting.
I
agree with the Court that petitioner has not demonstrated "cause" for
failing to challenge the validity of his guilty plea on direct review. I
disagree, however, that a defendant who has pleaded guilty can be given the
opportunity to avoid the consequences of his inexcusable procedural default by
having the courts inquire into whether "`it is more likely than not that
no reasonable juror would have convicted him'" of the offense to which he
pleaded guilty. Ante at 623,
quoting Schlup
v. Delo, 513 U.S. 298, 327-328
(1995).
No
criminal law system can function without rules of procedure conjoined with a
rule of finality. Evidence not introduced, [523 U.S. 630] or objections not made at the appropriate
time cannot be brought forward to reopen the conviction after judgment has been
rendered. In the United States, we have developed generous exceptions to the
rule of finality, one of which permits reopening, via habeas corpus, when the
petitioner shows "cause" excusing the procedural default, and
"actual prejudice" resulting from the alleged error. United
States v. Frady, 456 U.S. 152, 167-168
(1982). We have gone even beyond that generous exception in a certain class of
cases: cases that have actually gone to trial. There we have held that,
"even in the absence of a showing of cause for the procedural
default," habeas corpus will be granted "where a constitutional
violation has probably resulted in the conviction of one who is actually
innocent." Schlup v. Delo, supra, at 321
(internal quotation marks omitted). In every one of our cases that has
considered the possibility of applying this so-called actual innocence
exception, a defendant had asked a habeas court to adjudicate a successive or
procedurally defaulted constitutional claim after his conviction by a jury. See Kuhlmann
v. Wilson, 477 U.S. 436, 441,
452
(1986) (opinion of Powell, J.); Murray
v. Carrier, 477 U.S. 478, 482,
495-496
(1986); Smith
v. Murray, 477 U.S. 527, 529,
537-538
(1986); McCleskey
v. Zant, 499 U.S. 467, 471,
502
(1991); Sawyer
v. Whitley, 505 U.S. 333, 336-337,
339-340
(1992); Schlup, supra, at 305,
317-332.
There
are good reasons for this limitation: first and foremost, it is feasible to
make an accurate assessment of "actual innocence" when a trial has
been had. In Schlup, for example, we said
that, to sustain an "actual innocence" claim, the petitioner must
"show that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence."
513 U.S. at 327
(emphasis added). That "new evidence" was to be evaluated, of course,
along with the "old evidence," consisting of the transcript of the
trial. The habeas court was to
|
make its determination concerning [523 U.S. 631] the petitioner's innocence in light of all the
evidence, including that alleged to have been illegally admitted (but with
due regard to any unreliability of it) and evidence tenably claimed to have
been wrongly excluded or to have become available only after the trial. |
Schlup,
supra, at 328
(internal quotation marks omitted). As the Court's opinion today makes clear, ante at 624,
the Government is permitted to supplement the trial record with any additional
evidence of guilt, but the court begins with (and ordinarily ends with) a
complete trial transcript to rely upon. But how is the court to determine
"actual innocence" upon our remand in the present case, where
conviction was based upon an admission of guilt? Presumably the defendant will
introduce evidence (perhaps nothing more than his own testimony) showing that
he did not "use" a firearm in committing the crime to which he
pleaded guilty, and the Government, eight years after the fact, will have to
find and produce witnesses saying that he did. This seems to me not to remedy a
miscarriage of justice, but to produce one.*
[523 U.S. 632]
Secondly,
the Court has given as one of its justifications for the super-generous
miscarriage of justice exception to inexcusable default, "the fact that
habeas corpus petitions that advance a substantial claim of actual innocence
are extremely rare." Schlup, supra, at 321.
That may be true enough of petitions challenging jury convictions; it assuredly
will not be true of petitions challenging the "voluntariness" of
guilty pleas. I put "voluntariness" in quotation marks because we are
not dealing here with only coerced
confessions, which may indeed be rare enough. The present case is here because,
in Henderson v. Morgan, 426 U.S. 637, 644-646
(1976), this Court held that, where neither the indictment, defense counsel,
nor the trial court explained to the defendant that intent to kill was an
element of second-degree murder, his plea to that offense was
"involuntary." A plea, the Court explained, can
|
not be voluntary in the
sense that it constitute[s] an intelligent admission that he committed
the offense unless the defendant receive[s] "real notice of the true
nature of the charge against him, the first and most universally recognized
requirement of due process." |
Id.
at 645,
quoting Smith v. O'Grady, 312 U.S. 329, 334
(1941). Of course the word "voluntary" had never been used (by
precise speakers at least) in that sense -- in
the sense of "intelligent" -- and what the Henderson
line of cases did was, by sleight-of-tongue, to obliterate the distinction
between involuntary confessions and misinformed or even uninformed
confessions. Once all those categories have been lumped together, [523 U.S. 633] the cases within
them are not at all rare, but indeed exceedingly numerous.
It
is well established that, "when this Court construes a statute, it is
explaining its understanding of what the statute has meant continuously since
the date when it became law." Rivers v. Roadway Express, Inc., 511 U.S. 298, 313,
n. 12 (1994). Thus, every time this Court resolves a Circuit split regarding
the elements of a crime defined in a federal statute, most if not all
defendants who pleaded guilty in those Circuits on the losing end of the split
will have confessed "involuntarily," having been advised by the
Court, or by their counsel, that the law was what (as it turns out) it was not
-- or even (since this would suffice for application of Henderson) merely not
having been advised that the law was what (as it turns out) it was. Indeed, the
latter basis for "involuntariness" (mere lack of "real notice of
the charge against him," Henderson, supra,
at 165)
might be available even to those defendants pleading guilty in the Circuits on
the winning side of the split. Thus, our
decision in Bailey v. United States, 516 U.S. 137 (1995), has
generated a flood of 28 U.S.C. § 2255 habeas petitions, each asserting actual
innocence of "using" a firearm in violation of 18 U.S.C. § 924(c).
This Term, we will resolve a Circuit split over the meaning of another element
("carry" a firearm) in the same statute. See
Muscarello v. United States, No. 96-1654; Cleveland
and Santana v. United States, No. 96-8837. And we will also resolve
Circuit splits over the requisite elements of five other federal criminal
statutes. See Salinas v. United States, 522 U.S. 52 (1997) (18
U.S.C. § 666(a)(1)(B)); Brogan v. United States, 522 U.S. 398 (1998) (18
U.S.C. § 1001); Bates v. United States, 522 U.S. 23 (1997) (20
U.S.C. § 1097(a)); Bryan v. United States, No.
96-8422 (18 U.S.C. § 922(a)(1)(A)); Caron v. United
States, No. 97-6270 (18 U.S.C. § 921(a)(20)).
To
the undeniable fact that the claim of "actual innocence" is much more
likely to be available in guilty plea cases than in jury trial cases, there
must be added the further undeniable fact that guilty plea cases [523 U.S. 634] are very much
more numerous than jury trial cases. Last year, 51,647 of the 55,648 defendants
convicted and sentenced in federal court (or nearly 93 percent) pleaded guilty.
Administrative Office of the United States Courts, L. Mecham, Judicial Business
of the United States Courts: 1997 Report of the Director 214.
When
all these factors are taken into account, it could not be clearer that the
premise for our adoption in Schlup of the super-generous "miscarriage of
justice" exception to normal finality rules -- viz.,
that the cases in which defendants seek to invoke the exception would be
"extremely rare" -- is simply not true when the exception is extended
to guilty pleas. To the contrary, the cases will be extremely frequent, placing
upon the criminal justice system a burden it will be unable to bear --
especially in light of the fact, discussed earlier, that, on remand, the habeas
trial court will not have any trial record on the basis of which to make the
"actual innocence" determination.
Not
only does the disposition agreed upon today overload the criminal justice
system; it makes relief available where equity demands that relief be denied.
When a defendant pleads guilty, he waives his right to have a jury make the
requisite findings of guilt -- typically in exchange for a lighter sentence or
reduced charges. Thus, defendants plead guilty to charges that have not been
proven -- that perhaps could not be proven --
in order to avoid conviction on charges of which they are "actually
guilty," which carry a harsher penalty. Under today's holding, a defendant
who is the "wheel-man" in a bank robbery in which a person is shot
and killed, and who pleads guilty in state court to the offense of voluntary
manslaughter in order to avoid trial on felony-murder charges, is entitled to
federal habeas review of his contention that his guilty plea was
"involuntary" because he was not advised that intent to kill was an
element of the manslaughter offense, and that he was "actually
innocent" of manslaughter [523
U.S. 635] because he had no intent to kill. In such a case, it is
excusing the petitioner from his procedural default, not holding him to it,
that would be the miscarriage of justice.
The
Court evidently seeks to avoid this absurd consequence by prescribing that the
defendant's "showing of actual innocence must also extend" to any
charge the Government has "forgone," ante
at 624.
This is not even a fully satisfactory solution in theory, since it assumes that
the "forgone" charge is identifiable. If, as is often the case, the
bargaining occurred before the charge was filed ("charge bargaining"
instead of "plea bargaining"), it will almost surely not be
identifiable. And, of course, in practical terms, the solution is no solution
at all. To avoid the patent inequity, the Government will be called upon to
refute, without any factual record to rely upon, not only the defendant's
testimony of his innocence on the charge of conviction, but his testimony of
innocence on the "forgone" charge as well -- and as to the second,
even the finding of "factual basis" required in federal courts, see n.,
supra, will not exist. But even if rebuttal
evidence existed, it is a bizarre waste of judicial resources to require
mini-trials on charges made in dusty indictments (or indeed, if they could be
identified, on charges never made), just to
determine whether the defendant can litigate a procedurally defaulted challenge
to a guilty plea on a different offense. Rube
Goldberg would envy the scheme the Court has created.
*
* * *
It
would be marvelously inspiring to be able to boast that we have a criminal
justice system in which a claim of "actual innocence" will always be
heard, no matter how late it is brought forward, and no matter how much the
failure to bring it forward at the proper time is the defendant's own fault.
But, of course, we do not have such a system, and no society unwilling to
devote unlimited resources to repetitive criminal litigation ever could. The
"actual innocence" exception [523 U.S. 636] this Court has invoked to overcome
inexcusable procedural default in cases decided by a jury
|
seeks to balance the societal interests in finality,
comity, and conservation of scarce judicial resources with the individual
interest in justice that arises in the extraordinary case. |
Schlup,
513 U.S. at 324.
Since the balance struck there simply does not obtain in the guilty plea
context, today's decision is not a logical
extension of Schlup, and it is a grave
mistake. For these reasons, I respectfully dissent.
Footnotes
REHNQUIST,
J., lead opinion (Footnotes)
1.
See United States v. Carter, 117 F.3d 262 (CA5
1997); Lee v. United States, 113 F.3d 73 (CA7
1997); United States v. Barnhardt, 93 F.3d 706
(CA10 1996); In re Hanserd, 123 F.3d 922 (CA6
1997).
2.
Even were we to conclude that petitioner's counsel was unaware at the time that
petitioner's plea colloquy was constitutionally deficient,
|
[w]here the basis of a . . . claim is available, and other
defense counsel have perceived and litigated that claim, the demands of
comity and finality counsel against labeling alleged unawareness of the
objection as cause for a procedural default. |
Engle
v. Isaac, 456 U.S. 107, 134
(1982).
3.
JUSTICE SCALIA contends that this factual innocence inquiry will be unduly
complicated by the absence of a trial transcript in the guilty plea context. Infra at 631. We think his concerns are overstated.
In the federal system, where this case arose, guilty pleas must be accompanied by
proffers, recorded verbatim on the record, demonstrating a factual basis for
the plea. See Fed.Rules Crim.Proc. 11(f), (g).
STEVENS,
J., concurring and dissenting (Footnotes)
1.
The Court does cite Reed
v. Farley, 512 U.S. 339, 354
(1994), for the general proposition that habeas review "`will not be
allowed to do service for an appeal.'" Reed
is inapposite, however, as it involved neither a constitutional violation nor a
guilty plea. In Reed, the Court rejected a
state prisoner's statutory claim brought under 28 U.S.C. § 2254 on the grounds
that the prisoner had neither made a timely objection nor suffered prejudice. See 512 U.S. at 349
("An unwitting judicial slip of the kind involved here ranks with the
nonconstitutional lapses we have held not cognizable in a postconviction
proceeding").
2.
As we explained:
|
In |
|
The failure of a trial court to ask a defendant
represented by an attorney whether he has anything to say before sentence is
imposed is not of itself an error of the character or magnitude cognizable
under a writ of habeas corpus. It is an error which is neither jurisdictional
nor constitutional. It is not a fundamental defect which inherently results
in a complete miscarriage of justice, nor an omission inconsistent with the
rudimentary demands of fair procedure. . . . |
|
368 U.S. at 428. |
United
States v. Timmreck, 441 U.S. 780, 783
(1979). The Timmreck Court went on to hold
that "[t]he reasoning in Hill is equally
applicable to a formal violation of Rule 11" because "[s]uch a
violation is neither constitutional nor jurisdictional," and the error did
not
|
resul[t] in a "complete miscarriage of
justice" or in a proceeding "inconsistent with the rudimentary
demands of fair procedure." Respondent does not argue that he was
actually unaware of the special parole term or that, if he had been properly
advised by the trial judge, he would not have pleaded guilty. His only claim
is of a technical violation of the Rule. |
Id.
at 783-784.
SCALIA,
J., dissenting (Footnotes)
*
The Court believes these concerns are overstated because, in the federal
system, the court must be satisfied that there is a factual basis for the plea.
See ante at 624,
n. 3. This displays a sad lack of solicitude for state courts, which handle the
overwhelming majority of criminal cases. But even in the federal system, the
"factual basis" requirement will typically be of no use. Consider the
factual basis for the guilty plea in the present case, as set forth in the plea
agreement:
|
The parties . . . agree that, on or about March 19,
1990, . . . the defendant knowingly used firearms during and in relation to a
drug trafficking offense . . . . The following firearms were found in the
defendant's bedroom near the 6.9 grams of methamphetamine: a loaded Walther
PBK .380 caliber handgun, serial number A016494; and a loaded .22 caliber
Advantage Arms 4-shot revolver. The defendant admits ownership and possession
of these two guns. This conduct constituted a violation of Title 18, United
States Code, Section 924(c). Three other firearms were found in the two
briefcases containing the bulk of the methamphetamine: a loaded .22 caliber
North American Arms handgun, serial number C7854; a loaded .45 caliber Colt
Model 1911 semiautomatic handgun, serial number 244682; an unloaded Ruger
.357 caliber revolver, serial number 151-36099. The defendant denies
knowledge of these guns. |
App. 8. Of course,
"knowingly used" in this statement presumably means "knowingly
used" in the erroneous sense that prompts this litigation. And that will
almost always be the situation where the "involuntariness" of the
plea is a consequence of subsequently clarified uncertainty in the law: the
factual basis will not include a fact which, by hypothesis, the court and the
parties think irrelevant.