No. 96-8516

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

KENNETH E. BOUSLEY

v.

JOSEPH M. BROOKS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

ELIZABETH D. COLLERY
Attorney

Department of Justice
Washington, D.C. 20530-0001
(202) 514 - 2217

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QUESTION PRESENTED

    Whether petitioner, who entered a guilty plea to a charge of
using a firearm during and in relation to a drug trafficking
offense in violation of 18 U.S.C. 924 (c), may move pursuant to 28
U.S.C. 2255 to vacate his conviction in light of Bailey v. United
States, 116 S. Ct. 501 (1995), even though he did not challenge
the factual basis for his plea on direct appeal.

(I)

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No. 96-8516

KENNETH E. BOUSLEY, PETITIONER

v.

JOSEPH M. BROOKS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

    The opinion of the court of appeals (Pet. App. 1-6) is
reported at 97 F.3d 284 (1996).

JURISDICTION

    The judgment of the court of appeals was entered on October
3, 1996.  A petition for rehearing was denied on December 18,
1996.  The petition for a writ of certiorari was filed on March
18, 1997.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254 (1).

STATEMENT

    Following a plea of guilty in the United States District
Court for the District of Minnesota, petitioner was convicted of

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possession of methamphetamine with intent to distribute it, in
violation of 21 U.S.C. 841 (a) (1), and use of a firearm during and
in relation to a drug trafficking offense, in violation of 18
U.S.C. 924 (c).  He was sentenced to 78 months' imprisonment on
the drug offense and a consecutive term of 60 months'
imprisonment on the Section 924 (c) charge.  Petitioner appealed
his sentence and the court of appeals affirmed.  United States v.
Bousley, 950 F.2d 727 (8th Cir. 1991) (Table).
    Petitioner then filed a motion under 28 U.S.C. 2255,
challenging the factual basis underlying his plea to the Section
924 (c) charge.  1.  The district court dismissed the petition, and
the court of appeals affirmed.  Pet. App. 1-6.
    1.  On March 19, 1990, police officers executed a search
warrant at petitioner's house in Minneapolis, Minnesota.  The
officers found two coolers in the garage.  Inside the coolers
were two briefcases containing 3,153 grams of methamphetamine.
One of the coolers also contained two loaded handguns and one
unloaded handgun.  A coffee can in the garage contained an
additional 33 grams of methamphetamine.  The officers found
another 6.9 grams of methamphetamine and two loaded handguns in
petitioner's bedroom.  Pet. App. 1.
    Petitioner was charged in a superseding indictment with
possession of methamphetamine with intent to distribute it, in

___________________(footnotes)

    1  Although petitioner styled his pleading as a petition for
habeas corpus and named Joseph M. Brooks, the warden of the
prison where he is incarcerated, as the defendant, the district
court treated the petition as a motion under Section 2255.

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violation of 21 U.S.C. 841 (1) (a), and use of a firearm during and
in relation to a drug offense, in violation of 18 U.S.C. 924 (c).
He entered a plea of guilty to both charges pursuant to a plea
agreement that permitted him to challenge the amount of drugs
used to determine his sentence.  Pet. App. 2.
    
    Petitioner's plea agreement contained the following
stipulation regarding the factual basis for the plea:

    The parties also agree that, on or about March 19,
    1990 * * * the defendant knowingly used firearms during
    and in relation to a drug-trafficking offense, namely
    the offense of possession with the intent to distribute
    methamphetamine.  The following firearms were found in
    the [petitioner'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
    [petitioner] admits ownership and possession of these
    two guns.

Pet. C.A. Br at A-7.

    At the change of plea hearing, the district court asked
petitioner what Count 2 charged him with, and petitioner
responded that he had been charged with "possession of a 
firearm."  Petitioner admitted to possession of two firearms that
were seized from his bedroom and agreed that these guns were in
close proximity to the 6.9 grams of methamphetamine (which he
contended was for personal use).  Petitioner denied that he kept
the guns in his bedroom in order to assist in a drug deal, but
acknowledged that they were "available" if he needed a firearm
during his sales of illegal guns.  Tr. 6/15/90 Plea Hearing at
13-16.
    Following an evidentiary hearing, the district court
  
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determined that petitioner's sentence should be based on the
946.9 grams of methamphetamine found in his bedroom, in the
coffee can, and in one of the two briefcases in the garage.  On
November 2, 1990, petitioner was sentenced to 78 months'
imprisonment on the drug offense, and a consecutive term of 60
months' imprisonment on the Section 924 (c) charge, to be followed
by four years' supervised release.
    2.  Petitioner appealed from his sentence, contending that
the district court had erred in determining the amount of
methamphetamine for which he should be held accountable.
Petitioner did not challenge the factual basis for his plea to
the Section 924 (c) charge.  The court of appeals affirmed.
United States v. Bousley, 950 F.2d 727 (8th Cir.1991) (Table).
    3.  On July 5, 1994, petitioner filed a pro se petition for
a writ of habeas corpus under 28 U.S.C. 2241, contending that his
plea of guilty to the Section 924 (c) charge was not supported by
an adequate factual basis under Fed. R. Crim. P. 11 (f) because he
had not "used" the guns in his bedroom.  Pet. C.A. Br. at A13-
A16.  A United States Magistrate Judge recommended that
petitioner's pleading be dismissed.  The Magistrate Judge's
report concluded that there was a factual basis for petitioner's
plea because the guns in his bedroom were in close proximity to
drugs and were readily accessible.  Id. at A2-A12.  The district
court adopted the Magistrate Judge's report and recommendation on 
May 18, 1995, and ordered that the petition be dismissed.  Id. at
A1.
  
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    4.  Petitioner appealed.  While his appeal was pending, this
Court held, in Bailey v. United States, 116 S. Ct. 501 (1995),
that the conviction of a defendant for use of a firearm under
Section 924 (c) "requires evidence sufficient to show an active
employment of the firearm by the defendant."  116 S. Ct. at 505.
Active employment includes uses such as "brandishing, displaying,
bartering, striking with, and most obviously, firing or
attempting to fire" the weapon.  Id. at 508.  By contrast,
possession of a firearm -- without more -- does not constitute a
"use," nor does "placement of a firearm to provide a sense of
security or to embolden[.]"  Ibid.
    5.  After Bailey was decided, the court of appeals appointed
counsel to represent petitioner.  Petitioner's attorney filed a
supplemental brief arguing that petitioner's guilty plea should
be vacated in light of Bailey.  The court of appeals affirmed the
district court's order dismissing petitioner's motion.  Pet. App.
1-6.  The court of appeals began by noting that petitioner had
failed to challenge the factual basis for his Section 924 (c) plea
on his direct appeal.  As a result, the court of appeals
concluded, "[a]bsent a showing a cause and prejudice, Bousley may
not now bring [this] claim[ ] through collateral attack."  Id. at
3.
    The court of appeals rejected petitioner's claim that his
procedural default should be excused because neither he nor his
counsel could have foreseen the Bailey decision.  Citing United
States v. MCKinney, 79 F.3d 105, 109 (8th Cir. 1996), vacated and
    
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remanded, No. 96-6348 (May 19, 1997), the court concluded that
"Bailey does not resurrect a challenge to a section 924 (c)
conviction that has been procedurally defaulted."  Id. at 3.
    Nor, the court concluded, did petitioner's guilty plea
excuse his procedural default.  The court reasoned that "a
defendant who enters a guilty plea with no conditions as to guilt
'waives all challenges to the prosecution of his or her case
except for those related to jurisdiction.' "  Id. at 3.  The
court noted that "a plea agreement is a process of negotiation
and concession," and it declined to "allow this process to be
undone years after the fact."  Id. at 4.  Accordingly, the court
determined that "procedural default and waiver apply to those
convictions that follow a guilty plea not less than to those that
follow a trial."  Ibid.  Because the court found "no indication
that petitioner's plea was involuntary or uninformed," it
concluded that "he has waived his right to collateral review of
his conviction unless he can show cause for his procedural
default and resulting prejudice."  Id. at 5 (citation omitted).
    The court rejected petitioner's claim that his default
should be excused because he received ineffective assistance of
counsel during his plea and sentencing.  In particular, the court
concluded that petitioner's counsel did not act unreasonably in
advising petitioner not to appeal from his Section 924 (c)
conviction, given counsel's understanding of the interpretation
of Section 924 (c) before Bailey.  Accordingly, the court
concluded that petitioner "has waived his right to collateral
    
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review of his section 924 (c) conviction by pleading guilty and by
failing to challenge the conviction on direct appeal."  Id. at 5-
6.

DISCUSSION

    Petitioner contends that the court of appeals erred in
concluding that he has "waived" his right to challenge his
conviction under Section 924 (c) in light of Bailey.  Pet. 7-9.
In our view, although the court of appeals properly held that
petitioner could not show cause and prejudice for failing to
raise his claim before final judgment was entered on his guilty
plea, the court erred in suggesting that his guilty plea waived
his right to seek collateral review and in failing to inquire
whether petitioner should be excused from showing cause and
prejudice because he has made a colorable showing of "actual
innocence."  Accordingly, the judgment of the court of appeals
should be vacated and the case remanded for further proceedings
on that question.
    1.  The court of appeals stated that petitioner's claim was
barred at least in part because he had entered a guilty plea.
Pet. App. 2-6.  It is well established that "[a] plea of guilty
and the ensuing conviction comprehend all of the factual and
legal elements necessary to sustain a binding, final judgment of
guilt and a lawful sentence."  United States v. Broce, 488 U.S.
563, 569 (1989).  A defendant who pleads guilty "is convicted on
his counseled admission in open court that he committed the crime
charged against him."  MCMann v. Richardson, 397 U.S. 759, 773
 
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(1970); see also Libretti v. United States, 116 S. Ct. 356, 362
(1995) (plea of guilty constitutes "a defendant's admission of
guilt of a substantive criminal offense as charged in an
indictment"); Tollett v. Henderson, 411 U.S. 258, 267 (1973)
(guilty plea constitutes "admi[ssion] in open court that
[defendant] is in fact guilty of the offense with which he is
charged").
    In light of those principles, the scope of review available
on a post-conviction motion under 28 U.S.C. 2255 challenging a
conviction entered on a guilty plea is narrow:

    [W]hen the judgment of conviction upon a guilty plea has
    become final and the offender seeks to reopen the
    proceeding, the inquiry is ordinarily confined to whether
    the underlying plea was both counseled and voluntary.  If
    the answer is in the affirmative then the conviction and the
    plea, as a general rule, foreclose the collateral attack.

Broce, 488 U.S. at 569; see also Tollett v. Henderson, 411 U.S.
at 266 ("The focus of federal habeas inquiry is the nature of the
advice [of counsel] and the voluntariness of the plea.").
Petitioner, however, contends that his guilty plea was
involuntary.  See Appellant's Supplemental C.A. Br. 5.  As this
Court has noted, a guilty plea "cannot be truly voluntary unless
the defendant possesses an understanding of the law in relation
to the facts."  McCarthy v. United States, 394 U.S. 459, 466
(1969).  A guilty plea that is entered without adequate notice of
the elements of the offense may therefore be challenged on a
collateral attack.  Henderson v. Morgan, 426 U.S. 637, 644
(1976).
    Ordinarily, it is appropriate to presume that defense
  
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counsel has explained the nature of the offense in sufficient
detail to give the defendant notice of what he is being asked to
admit.  Henderson, 426 U.S. at 647; Marshall v. Lonberger, 459
U.S. 422, 436 (1983).  Here, however, the transcript of the plea
hearing shows that petitioner incorrectly believed that he could
be convicted under Section 924 (c) based solely on "possession" of
a weapon.  See p. 3, supra.  That understanding was consistent
with Eighth Circuit law before Bailey, and neither the court nor
the prosecution said anything to disabuse petitioner of the view
that possession of the firearm was illicit.  As a result,
petitioner had "such an incomplete understanding of the charge
that his plea cannot stand as an intelligent admission of guilt."
Tollett, 426 U.S. at 644.  Accordingly, assuming that petitioner
can overcome his procedural default, petitioner may challenge his
conviction on collateral attack notwithstanding his guilty
plea.  2
    2.  A defendant who brings a collateral challenge to his
conviction on grounds not raised on direct appeal must ordinarily
show both "cause" excusing his procedural default and "actual

___________________(footnotes)

    2  Two courts of appeals have held that a guilty plea never
bars a Bailey challenge to a Section 924 (c) count on collateral
attack.  See United States v. Barnhardt, 93 F.3d 706 (10th Cir.
1996); Lee v. United States, 1997 WL 213972 at *2-*3 (7th Cir.
Apr. 30, 1997).  In addition to those cases, numerous courts of
appeal have allowed post-Bailey challenges to Section 924 (c)
convictions on direct appeal following a guilty plea.  See, e.g.,
United States v. Cruz-Rojas, 101 F.3d 283, 285-86 (2d Cir. 1996);
United States v. Mitchell, 104 F.3d 649, 652 & n.2 (4th Cir.
1997); United States v. Andrade, 83 F.3d 729, 730-731 (5th Cir.
1996); United States v. Damico, 99 F.3d 1431 (7th Cir. 1996),
cert. denied, 117 S. Ct. 1086 (1997); United States v. Staples,
85 F.3d 461 (9th Cir.), cert. denied, 117 S. Ct. 318 (1996).
  
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prejudice" resulting from the error of which he complains.
United States v. Frady, 456 U.S. 152, 168 (1982).  The court of
appeals correctly concluded that petitioner had failed to
demonstrate cause for his procedural default.  In a narrow class
of cases, however, a defendant's procedural default does not bar
his opportunity to raise a claim on a collateral challenge.  3
    This Court has held that even a defendant who is unable to
show cause and prejudice may obtain "collateral review of his
constitutional claims * * * if he falls within the 'narrow class
of cases . . . implicating a fundamental miscarriage of
justice.' "  Schlup v. Delo, 115 S. Ct. 851, 861 (1995).  A
defendant may show that his is the "extraordinary case," id. at
864, that falls within that class by showing that a
constitutional error "has probably resulted in the conviction of
one who is actually innocent."  Murray v. Carrier, 477 U.S. 478,
496 (1986).  4.  See also Schlup, 116 S. Ct. at 865.
    The court of appeals erred by failing to consider whether
petitioner had made a sufficient showing of actual innocence to
warrant reaching the merits of his constitutional claim,
notwithstanding his failure to show and cause and prejudice.  See

___________________(footnotes)

   3  Other procedural rules governing collateral challenges
may, however, still bar a defendant's claim.  See, e.g., 28
U.S.C. 2255 (imposing 1-year statute of limitations on Section
2255 motions and limiting second or successive Section 2255
motions).

    4  Although petitioner did not expressly argue that his
claim of innocence excused a showing of cause, his pro se brief
on appeal both raised a claim of innocence and cited to Murray v.
Carrier, 477 U.S. 478 (1986).  See Pet. C.A. Br. at 2.
  
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Pet. App. 3 (procedural default excused "only if " prisoner can
show cause and prejudice).  To satisfy that showing, petitioner
must show not only that the guilty plea proceedings were
defective, but he also must carry the burden of pointing to
evidence already in the record -- or introducing new evidence if
necessary -- that demonstrates that he is actually innocent of
the offense of conviction.  5.  Cf. Schlup, 115 S. Ct. at 867.  The
judgment of the court of appeals should therefore be vacated and
the case should be remanded for further proceedings to determine
whether the "actual innocence" standard is satisfied.  Because
the question whether petitioner has carried his burden has a
large factual component, see Schlup, 115 S. Ct. at 868-869, the
court of appeals may wish to remand this case for resolution of
the "actual innocence" issue in the first instance by the
district court.  6

___________________(footnotes)

    5  As noted above, see note 2, supra, two circuits have held
that a guilty plea does not bar a defendant from mounting a
collateral attack on his Section 924 (c) conviction under Bailey.
Insofar as those cases stand for the proposition that a guilty
plea does not necessarily bar a collateral attack on a Section
924 (c) conviction under Bailey, they are correct and consistent
with the analysis in this Brief.  Insofar as they are read to
hold, however, that a defendant is automatically excused from a
failure to show cause and prejudice when he brings a Bailey-based
collateral attack on his conviction, in our view they are
incorrect; to overcome a failure to show cause for a procedural
default, a prisoner bringing a Bailey claim -- like a prisoner
bringing any other claim -- must show that a miscarriage of
justice would result by failing to consider the defaulted claim.

    6  Petitioner suggests (Pet. i, 7) that certiorari is
warranted "to resolve the conflict between circuits regarding the
retroactive application of Bailey."  The decision below does not
address the "retroactivity" of Bailey, however, and there is no
conflict among the circuits on that issue.  See Pet. App. 4
("[t]he retroactive effect of Bailey is a distinct issue from
        
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CONCLUSION

    The petition for a writ of certiorari should be granted, the
judgment of the court of appeals vacated, and the case remanded
to the court of appeals for further proceedings to determine
whether petitioner should be excused from his inability to show
cause and prejudice for his failure to advance his constitutional
claim on direct review.

    Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

ELIZABETH D. COLLERY
Attorney

JUNE 1997

___________________(footnotes)

whether a defendant has waived the right to collateral review by
failing to preserve an issue on appeal.").