United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2384

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Gary Apker, *

*

Appellant. *

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Submitted: February 10, 1999

Filed: April 19, 1999

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Before BOWMAN, Chief Judge, HANSEN, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

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BOWMAN, Chief Judge.

This case is before us on remand from the United States Supreme Court. See

Apker v. United States, 118 S. Ct. 2339 (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, 118 S. Ct. 1969 (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
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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 codefendants 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).
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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 (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
1Section 2253(c)(1) states in pertinent part: "Unless a circuit justice or judge

issues a certificate of appealability, an appeal may not be taken to the court of appeals

from . . . the final order in a proceeding under section 2255." 28 U.S.C.A.

§ 2253(c)(1) (West Supp. 1998).

2Section 2253(c)(2) states: "A certificate of appealability may issue under

paragraph (1) only if the applicant has made a substantial showing of the denial of a

constitutional right." 28 U.S.C.A. § 2253(c)(2) (West Supp. 1998). 

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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, 118 S. Ct. 1969 (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, 118 S.

Ct. at 2339. We thereupon granted Apker the certificate of appealability necessary
3Apker argued to the District Court that no factual basis for his guilty plea

existed, that he is factually innocent of the crime for which he was convicted, and that

his conviction and sentence "are fundamentally defective and result in a complete

miscarriage of justice." Petitioner's Motion to Vacate Sentence and to Withdraw Plea

of Guilty at 1. For the purposes of this appeal, in light of the intervening Supreme

Court precedent clarifying the law upon which Apker bases his appeal, we construe

Apker's arguments to the District Court to be substantially the same as the arguments

more clearly presented to us in Apker's appellate briefs.

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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, 119

S. Ct. 844 (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, 118 S. Ct. 1911, 1917 (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 arguments3 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 nonjurisdictional 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
4Apker does not appear to argue that he can demonstrate cause and prejudice.

Cf. Murray v. Carrier, 477 U.S. 478, 485 (1986) (stating a § 2255 petitioner "must

show cause for the procedural default and prejudice attributable thereto in order to

obtain review of his defaulted constitutional claim") (explaining Wainright v. Sykes,

433 U.S. 72, 87 (1977)). But even if Apker sought to make a showing of cause and

prejudice, the Supreme Court in Bousley appears to have foreclosed that avenue to

petitioners like Apker. The petitioner in Bousley, in an attempt to demonstrate cause

for his failure to raise a Bailey issue on direct appeal, argued that the legal basis for

his claim was not reasonably available to counsel when the petitioner pleaded guilty

and that any pre-Bailey attack on the guilty plea would have been futile. The Court

rejected both arguments and determined that the petitioner was unable to establish

cause for his default. See Bousley, 118 S. Ct. at 1611; Jones v. United States, 153

F.3d 1305, 1307-08 (11th Cir. 1998) (explaining Bousley). 

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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 (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, 118 S. Ct. 1604, 1610 (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
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establish that the constitutional error in his plea colloquy 'has probably resulted in the

conviction of one who is actually innocent.'" Bousley, 118 S. Ct. at 1611 (quoting

Murray v. Carrier, 477 U.S. 478, 496 (1986)); see also Hellbusch, 147 F.3d at 783-84

(explaining Bousley).

To prove actual innocence, Apker must show that, in light of all the evidence,

it is more likely than not that no reasonable juror would have found him guilty

beyond a reasonable doubt of the crime for which he pleaded guilty and was

convicted. SeeBousley, 118 S. Ct. at 1611 (citing Schlup v. Delo, 513 U.S. 298, 327-

28 (1995)). To rebut any showing that Apker might make, "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 . . . Bailey." Bousley, 118 S. Ct. at 1612. Furthermore, if

this is a case in which "the Government has forgone more serious charges in the

course of plea bargaining, petitioner's showing of actual innocence must also extend

to those [more serious] charges." Id. at 1612; see also Jones v. United States, 153

F.3d 1305, 1308 (11th Cir. 1998).

Although the District Court had no occasion to address the issue of actual

innocence in light of Bousley, we conclude, based on the record before us, that Apker

cannot demonstrate actual innocence of the drug trafficking charges that were alleged

in the superseding indictment and dismissed in exchange for Apker's guilty plea.

The thirty-three count superseding indictment alleged that Apker and his codefendants: conspired to distribute and possess with intent to distribute one kilogram

or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count

1); engaged in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a)

(count 2); distributed methamphetamine in violation of § 841(a)(1) (counts 3-15);

possessed with intent to distribute methamphetamine in violation of § 841(a)(1)

(counts 16-29); traveled in interstate commerce with intent to carry on unlawful
5Another indictment, not appearing in the record before us, apparently charged

Apker and his co-defendants with eleven counts of drug trafficking and money

laundering. These charges, as they pertained to Apker, also were dismissed in

exchange for Apker's guilty plea. 

6See United States v. Apker, 964 F.2d 742, 743 (8th Cir. 1992) ("Apker is

charged in two multi-count indictments with various offenses . . . . He faces thirty

years to life imprisonment on these charges. . . . [He] has a history of prior criminal

conduct, including at least one conviction on a controlled substances charge."). For

details of Apker's past criminal exploits, see United States v. Apker, 705 F.2d 293 (8th

Cir. 1983), cert. denied, 465 U.S. 1005 (1984). 

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activity in violation of 18 U.S.C. §§ 2 and 1952(a)(3) (count 30); conducted a

financial transaction involving the proceeds of unlawful activity in violation of 18

U.S.C. §§ 2 and 1956(a)(1) (counts 31 and 32); and 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) (count 33).5 Considering the large amount of

methamphetamine involved and Apker's criminal history, the potential existed for a

sentence of life imprisonment had Apker been prosecuted and convicted of the

charges brought against him.6

Apker's co-defendants, after either entering conditional guilty pleas or standing

trial, were convicted on multiple counts of violating §§ 841(a)(1) and 846 and

sentenced to prison terms ranging from 41 to 240 months for each count, to be served

concurrently. A spate of appeals followed, thus establishing in this Court a lengthy

record of the criminal activity that instigated the investigation, prosecution, and

conviction of the methamphetamine conspiracy. For example, in the context of a

claim by Timothy Egan that the evidence at trial was insufficient to establish that

Egan was a voluntary participant in the methamphetamine conspiracy, this Court

determined that "[f]rom listening to the intercepted conversations between Egan and

Apker, the jury could have rationally determined that Apker fronted drugs to Egan for

distribution and that Egan advised Apker about laundering money." Lucht, 18 F.3d
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at 552. Likewise, in the course of Dale Ray Haley's sufficiency-of-evidence

challenge to his conspiracy conviction, we noted a taped conversation in which Haley

and Apker "discuss[ed] problems with Apker's drug distribution business, including

problems with his being paid with small bills." Id. And while considering Fred

Friend's Bailey challenge, we began with the observation that "police found the

handgun and silencer hidden with a large quantity of drugs and cash in a secret safe

at the home of Gary Apker, the lead conspirator." Friend, 101 F.3d at 558.

Furthermore, on Apker's direct appeal of the District Court's denial of Apker's motion

to suppress evidence, our affirmance produced the statement that "officers knew that

Apker had completed a drug transaction within hours of the search [and that] he had

a hiding place for his drugs." Lucht, 18 F.3d at 549.

At Apker's change of plea hearing, the court methodically advised Apker of the

elements of the § 924(c) offense charged in the one-count information to which Apker

pleaded guilty: "[T]hat crime has two essential elements which are as follows: 1.

That you committed a drug trafficking crime. . . . 2. During and in relation to the

commission of that crime you knowingly used or carried a firearm equipped with a

firearm silencer or a firearm muffler." Hearing Tr. at 36-37. The court paused to

assure that Apker understood each element of the crime and that "the government

would have to prove both of those elements beyond a reasonable doubt before you

could be convicted." Id. at 37. The court then elaborated at length upon the meaning

of the first element of the § 924(c) offense:

THE COURT: Do you understand that . . . the term "drug trafficking

crime" means any felony punishable under the Controlled Substances

Act which is 21 United States Code 801, Section 801 and following, or

the Controlled Substances Import and Export Act which is 21 USC

Section 951 and following . . . and do you understand that?

DEFENDANT APKER: Yes.
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THE COURT: You were here and heard me explain to the other

defendants what the crime of distribution of a substance or mixture

containing methamphetamine was, didn't you?

DEFENDANT APKER: Yes.

. . . .

THE COURT: And did you hear me explain to the other defendants also

the elements of the crime of possession with intent to distribute a

substance or mixture containing methamphetamine? Did you hear me

explain that crime and the elements of that to the other defendants here?

DEFENDANT APKER: Yes.

. . . .

THE COURT: Those are an example of . . . the type of felony

punishable under the Controlled Substances Act, 21 USC Section 801

et seq., but it could be a crime such as that or some other crime. Do you

understand that?

DEFENDANT APKER: Yes.

Hearing Tr. at 37-38. Finally, the court informed Apker that by pleading guilty he

was attesting that he had knowledge of all the matters discussed at the plea hearing.

Apker again responded that he understood and entered a conditional guilty plea.

"'A plea of guilty is the equivalent of admitting all material facts alleged in the

charge. Under § 924(c), this includes admitting to an underlying drug offense

sufficient to support a conviction under that section.'" United States v. Powell, 159

F.3d 500, 503 (10th Cir. 1998) (quoting United States v. Kelsey, 15 F.3d 152, 153

(10th Cir. 1994)), cert. denied, 119 S. Ct. 1088 (1999); see also O'Leary v. United

States, 856 F.2d 1142, 1143 (8th Cir. 1988) ("In pleading guilty, a defendant admits
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all of the factual allegations made in the indictment."); Adkins v. United States, 298

F.2d 842, 844 (8th Cir.) ("A plea of guilty is an admission of all the essential elements

of an information or indictment so that no other proof on the part of the government

is necessary for a judgment of conviction."), cert. denied, 370 U.S. 954 (1962). As

is evident from the careful plea hearing conducted by the District Court, Apker's plea

of guilty to the § 924(c) charge, which requires that Apker used or carried a firearm

"during and in relation to a drug trafficking crime," was an admission that he had

committed at least one drug trafficking crime. See Powell, 159 F.3d at 503 (holding

petitioner's guilty plea to a § 924(c) charge was an admission sufficient to support a

conviction under §§ 841(a)(1) and 841(b)(1)(B)(iii)).

In view of the foregoing discussion, we conclude there is no need for a remand

on the question of Apker's actual innocence of the charges on which, through his plea

agreement, he escaped prosecution. The question remains, however, whether the

charges that the Government agreed not to prosecute in exchange for Apker's plea

of guilty to the § 924(c) charge are "more serious" within the meaning of Bousley

than the § 924(c) charge. See Bousley, 118 S. Ct. at 1612 (stating that petitioner's

showing of actual innocence must extend to "more serious" charges foregone in the

course of plea bargaining). We think it advisable to allow that question to be

addressed initially by the District Court. Accordingly, we remand the case to the

District Court. Only if the foregone charges are not "more serious" than the § 924(c)

charge will Apker have overcome his procedural default, and only then will the

District Court be obliged to hear Apker's claim of an unknowing and involuntary plea

on its merits. See id.

The judgment of the District Court is reversed, and the case is remanded for

further proceedings consistent with this opinion.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.