Kenneth E. Bousley v. Joseph M. Brooks ( 1996 )

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No. 95-2687
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Kenneth Eugene Bousley, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Joseph M. Brooks, Warden, *
*
Appellee. *
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Submitted: July 26, 1996
Filed: October 3, 1996
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Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
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BEAM, Circuit Judge.
Kenneth E. Bousley was convicted in 1990, upon a plea of guilty, for
drug trafficking and use of a firearm in relation to a drug offense. He
1
now appeals from the district court's dismissal of his 28 U.S.C. § 2255
habeas corpus petition. We affirm.
I. BACKGROUND
On March 19, 1990, police officers executed a search warrant at
Bousley's home in Minneapolis, Minnesota. The officers found two coolers
in Bousley's garage. Inside the coolers were two briefcases containing
approximately seven pounds (3,153 grams) of methamphetamine. One of the
coolers also contained two loaded
1
The Honorable David S. Doty, United States District Judge for
the District of Minnesota, adopting the recommendations of the
Honorable Raymond L. Erickson, United States Magistrate Judge for
the District of Minnesota.
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 Bousley's bedroom.
Bousley was charged with possession of methamphetamine with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1), and with use of a
firearm in relation to a drug offense pursuant to 28 U.S.C. § 924(c).
Bousley admitted that he had been selling methamphetamine from his garage.
He also admitted knowledge of the drugs and firearms in his bedroom, as
well as of the drugs found in the coffee can in the garage. Bousley
disclaimed knowledge of the drugs and firearms found inside the two
coolers.
Bousley entered a plea of guilty to both the drug and firearms
charges. The plea agreement stipulated that Bousley could challenge the
amount of drugs that would be used to determine his sentence. In
accordance with this agreement, the district court held an evidentiary
hearing at which it received exhibits and took testimony from Bousley and
FBI Special Agent Michael Kelly, who had interviewed Bousley after his
arrest. Based on the hearing and on Bousley's presentence report, the
district court determined that Bousley's sentence for the drug charge would
be based on the 946.9 grams of methamphetamine found in Bousley's bedroom,
in the coffee can, and in one of the two briefcases in the garage. The
court decided not to consider the approximately five pounds of drugs found
in the second briefcase in determining the relevant conduct for which
Bousley was accountable. The court sentenced Bousley to a term of seventy-
eight months for the section 841(a)(1) drug charge and to a consecutive
mandatory sixty-month sentence under § 924(c) for use of the firearms in
relation to the drug offense.
Bousley appealed his sentence under the drug charge. This court
affirmed. United States v. Bousley, No. 90-5598 (8th Cir. Sept. 25, 1991).
Bousley then brought this habeas corpus action
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pursuant to 28 U.S.C. § 2255. Bousley claims: (1) that his plea of guilty
to the section 924(c) firearms charge is not supported by an adequate
factual basis; and (2) that section 924(c) is unconstitutionally vague.
The district court dismissed the petition and Bousley appeals. After
Bousley filed his appeal, the United States Supreme Court clarified the
scope of section 924(c) in Bailey v. United States, 116 S. Ct. 501 (1995).
Bousley then supplemented his brief, arguing that Bailey requires us to set
aside his guilty plea.
II. DISCUSSION
We review the district court's dismissal of Bousley's section 2255
petition de novo. Holloway v. United States, 960 F.2d 1348, 1351 (8th
Cir. 1992). In the proceedings below, the government argued that Bousley
waived his right to challenge his conviction in a collateral action because
he failed to preserve this issue in his prior appeal. While the district
court considered the merits of Bousley's claims in dismissing the petition,
we find the waiver issue dispositive.
A. Waiver
A petitioner who fails to raise an issue on direct appeal is
thereafter barred from raising that issue for the first time in a
section 2255 habeas corpus proceeding. Reid v. United States, 976 F.2d
446, 447 (8th Cir. 1992), cert. denied, 507 U.S. 945 (1993) (citing United
States v. Frady, 456 U.S. 152, 165 (1982)). Such a waiver applies to
convictions pursuant to plea agreements as well as to those rendered after
trial. See id. at 448 (defendant convicted of section 924(c) violation
after nolo contendere plea pursuant to a plea agreement is barred from
challenging conviction in section 2255 action). A petitioner is excused
from a procedural default only if he can show both (1) a cause that excuses
the
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default, and (2) actual prejudice from the errors that are asserted. Id.
In his prior appeal, Bousley challenged only the propriety of the
sentence imposed for his possession of methamphetamine. Bousley, No. 90-
5598, slip op. at 1. Bousley did not appeal the adequacy of the factual
basis of his guilty plea, nor did he argue that section 924(c) is
unconstitutionally vague. Absent a showing of cause and prejudice, Bousley
may not now bring these claims through collateral attack.
Bousley argues that he is not barred from collaterally challenging
his conviction, despite his default, because of the Supreme Court's ruling
in Bailey. In Bailey, the Court held that "use" of a firearm under
section 924(c) requires a showing of "active employment" of the firearm,
a more stringent standard than this Circuit had previously applied. Bailey,
116 U.S. at 505. Bousley argues that because neither he nor his counsel
could have foreseen the decision in Bailey, he has not waived a challenge
to his conviction.
We disagree. This court recently held in United States v. McKinney,
79 F.3d 105, 109 (8th Cir. 1996), that Bailey does not resurrect a
challenge to a section 924(c) conviction that has been procedurally
defaulted.2 The defendant in McKinney had been
2
In urging that "Bailey should be held retroactively
applicable to [his section] 2255 motion," Bousley claims that
McKinney "is alone in denying relief under Bailey to appellants
with pending cases . . . and would set this court alone against all
other courts that have addressed the issue." Supplemental Brief of
Appellant at 3, 5. As an initial matter, a panel of this court is
not free to disregard another panel decision. Smith v. Copeland,
87 F.3d 265, 269 (8th Cir. 1996). Even were we able to do so,
Bousley's assertion is groundless. The retroactive effect of
Bailey is a distinct issue from whether a defendant has waived the
right to collateral review by failing to preserve an issue on
appeal. This court has not hesitated to remand section 924(c)
convictions for reconsideration in light of Bailey when the
defendant preserved the
issue by properly challenging the conviction on direct appeal.
See, e.g., United States v. Webster, 84 F.3d 1056, 1066-68 (8th
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convicted after trial, rather than, as here, upon a guilty plea. Id. at
107. However, Bousley's plea cannot excuse his procedural default.
Indeed, 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." United States v. Jennings, 12 F.3d 836,
839 (8th Cir. 1994) (citing Smith v. United States, 876 F.2d 655, 657 (8th
Cir.), cert. denied, 493 U.S. 869 (1989)). Collateral review of a guilty
plea is therefore "ordinarily confined to whether the underlying plea was
both counseled and voluntary." United States v. Broce, 488 U.S. 563, 569
(1989).
As this case illustrates, a plea agreement is a process of
negotiation and concession. Bousley pleaded guilty, but was afforded by
stipulation in the plea agreement the opportunity to contest the amount of
methamphetamine for which he would be held accountable. This concession
allowed the district court to determine that it would not consider for
sentencing purposes five pounds of the drugs found in Bousley's garage.
We will not allow this process to be undone years after the fact, nor does
Bousley cite any authority that compels us to upset the finality of such
a plea agreement.3 We are therefore convinced that procedural
Cir. 1996).
3
Bousley argues that Davis v. United States, 417 U.S. 333
(1974), compels us to reopen his plea. As counsel conceded at oral
argument, however, Davis involved a conviction after a trial and a
direct appeal in which the petitioner presented the same issue
raised later in his section 2255 action. This is a far cry from
a collateral attack of a conviction resulting from a plea
agreement.
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default and waiver apply to those convictions that follow a guilty plea no
less than to those that follow a trial.4
As the district court noted, the record shows that Bousley
acknowledged ownership of at least some of the methamphetamine and firearms
found in his garage and bedroom and admitted selling drugs from his garage.
Before accepting Bousley's plea, the sentencing court meticulously advised
Bousley of his rights to counsel and to a jury trial, explained that he
would be subject to mandatory minimum sentences, and inquired whether
Bousley had been threatened or pressured to plead guilty. The court also
advised Bousley that a guilty plea would foreclose an appeal of his
conviction, and Bousley indicated that he understood this. Bousley was
fully advised of his rights and understood that he was waiving those rights
by pleading guilty. Because there is no indication that Bousley's plea was
involuntary or uninformed, he has waived the right to collateral review of
his conviction unless he can show cause for his procedural default and
resulting prejudice. Ford v. United States, 983 F.2d 897, 898 (8th Cir.
1993).
B. Cause and Prejudice
Bousley's only argument to excuse his default is that he received
ineffective assistance of counsel during his plea and sentencing. See
United States v. Ward, 55 F.3d 412, 413 (8th Cir. 1995) (citing Frady, 456
U.S. at 167-68) (ineffective assistance of counsel may constitute "cause"
to excuse procedural default in a section 2255 action). Specifically,
Bousley claims that his counsel failed to pursue a viable defense, was
"prosecutorial" in examining him during his sentencing, refused to research
existing
4
We acknowledge that the Tenth Circuit in United States v.
Barnhardt, 93 F.3d 706 (10th Cir. 1996) permitted a collateral
attack on a section 924(c) conviction following a guilty plea. For
the reasons discussed in the text, however, we decline to follow
our sister circuit on this point.
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law, and refused to honor Bousley's request to appeal his conviction under
section 924(c).
We have carefully examined the record and find Bousley's arguments
to be without merit. To be constitutionally deficient, counsel's
performance must fall "below an objective standard of reasonableness."
Strickland v. Washington, 466 U.S. 668, 688 (1984). In examining whether
an attorney failed to meet this standard, "a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at 689.
Other than the generalized assertions noted above, Bousley points to
no instances in which counsel failed to adequately represent him, much less
that his counsel's actions fell below the constitutional minimum Strickland
requires. Bousley's counsel did recommend that Bousley not pursue an
appeal of his section 924(c) conviction, but that recommendation was not
unreasonable given counsel's understanding of this court's interpretation
of section 924(c) before Bailey. In any event, counsel fully explained his
reasons for declining to appeal the conviction to Bousley, and advised
Bousley that he should seek other counsel if he was determined to press
that issue on appeal. These actions do not rise to a constitutionally
deficient level of unreasonableness.
Because Bousley has not shown that his counsel's representation fell
below an objective standard of reasonableness, he has failed to establish
that he received ineffective assistance from counsel. We therefore find
no cause for Bousley's procedural default, and need not examine the
"prejudice" element of Bousley's claim. Bousley has waived his right to
collateral review of his section 924(c) conviction by pleading guilty and
by failing to challenge the conviction on direct appeal.
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III. CONCLUSION
For the foregoing reasons, we affirm the district court's dismissal
of Bousley's petition.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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