No. 97-5460 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 GARY APKER, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE UNITED STATES SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General VICKI S. MARANI Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether petitioner was required to obtain a certificate of appealability under 28 U.S.C. 2253(c) (2) in order to appeal the denial of a motion under 28 U.S.C. 2255, where the motion was filed in the district court before the effective date of the Anti- Terrorism and Effective Death Penalty Act of 1996, but the case on appeal was filed after the effective date of the Act. 2. Whether petitioner's claim that his plea of guilty to a violation of 18 U.S.C. 924(c) was invalid in light of Bailey v. United States, 116 S. Ct. 501 (1995) was a purely statutory claim that could not justify issuance of a certificate of appealability under 28 U.S.C. 2253(c) (2), which requires a "Subtantial showing of the denial of a constitutional right. " (1) ---------------------------------------- Page Break ---------------------------------------- No. 97-5460 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 GARY APKER, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE UNITED STATES The opinion of the court of appeals (Pet. App. A1-A2)1 is reported at 101 F.3d 75 (1996). The memorandum opinion and order of the district court (Pet. App. B1-B14) is unreported. OPINIONS BELOW JURISDICTION The judgment of the court of appeals was entered on December 6, 1996. A petition for rehearing was denied on March 4, 1997. The time to file a petition for a writ of certiorari was extended to August 1, 1997, by Justice Thomas, Pet. App. C, and the petition ___________________(footnotes) 1 The appendix to the petition includes three separately paginated documents. We refer to the documents as A, B, and C. ---------------------------------------- Page Break ---------------------------------------- 2 was filed on July 28, 1997. The jurisdiction of this Court is invoked under 28 U. S.C. 1254(1) . STATEMENT Petitioner entered a conditional plea of guilty in the United States District Court for the District of Nebraska to a one-count information charging him with using or carrying a firearm equipped with a silencer or muffler during and in relation to a drug- trafficking crime, in violation of 18 U.S.C. 924 (C). He was sentenced to 30 years' imprisonment, to be followed by five years of supervised release. He appealed the denial of certain pretrial motions, and the court of appeals affirmed United States v. Lucht , 18 F.3d 541 (8th Cir.), cert. denied, 513 U.S. 949 (1994). Petitioner then filed a motion under 28 U.S.C. 2255, challenging the validity of his guilty plea. The district court dismissed the motion, Pet. App. B1-B14, and the court of appeals declined to issue a certificate of appealability, Pet. App. A1-A2. 1. Petitioner, a member of the Hell's Angels Motorcycle Club, was the central figure in a large-scale conspiracy to distribute methamphetamine in the Omaha area. During an investigation into the conspiracy, a search warrant was obtained for petitioners residence. In an ensuing search, police found a .22-caliber pistol equipped with a silencer, about ten pounds of methamphetamine, a substantial quantity of a cutting agent, and more than $200,000. Lucht , 18 F.3d at 545-546; Gov't C.A. Br. 4-6. Petitioner and his co-conspirators were ultimately charged in a 33-count superseding indictment with conspiracy to distribute ---------------------------------------- Page Break ---------------------------------------- 3 methamphetamine and to possess methamphetamine with intent to distribute it, in violation of 21 U.S.C. 846, and with various substantive crimes committed in furtherance of the conspiracy. The superseding indictment also charged petitioner with a violation of 18 U.S.C. 924(c). Thereafter, petitioner and others were charged in an additional 11-count indictment with drug-trafficking and money-laundering offenses. Pet. App. BI-B2. After moving unsuccessfully to suppress the evidence against him, petitioner entered into a plea agreement with the government. In exchange for the government's promise to move for dismissal of every other charge against him, petitioner agreed to enter a guilty plea (conditioned on his right to appeal the adverse suppression rulings) to a one-count information that charged him with violating Section 924(c) by using or carrying a firearm equipped with a silencer or muffler during and in relation to a drug-trafficking crime. Pet. App. B2-B3; Plea Tr. 69, 73, 93.2 2. At his change-of-plea hearing on March 18, 1992, petitioner was repeatedly advised of, and said he understood, the nature and elements of the Section 924(c) charge, the mandatory 30- year prison term it carried, and the rights he would be giving up by pleading guilty. Plea Tr. 7, 11, 15-16, 36-38, 41, 47, 85-88. In particular, the court directed petitioner's attention to ___________________(footnotes) 2 Specifically, the information charged that on or about October 17, 1990, petitioner "did knowingly, willfully and unlawfully use or carry a firearm equipped with a firearm silencer or firearm muffler (a .22 pistol with a silencer or muffler) during and in relation to a drug trafficking crime," in violation of 18 U.S.C. 924(c). Pet. App. B3. ---------------------------------------- Page Break ---------------------------------------- 4 question 46 in his petition to enter a plea of guilty, which asked what petitioner did that made him think he was guilty of the charge, and to petitioner's answer to that question, which was "possession of a firearm with a silencer." Id. at 81. The court informed petitioner that possession "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," as the court had previously explained. Ibid. Petitioner said he understood this, but the court again asked if he "underst[oo]d that the answer [he'd] given wouldn't be sufficient to find [him] guilty of the crime with which [he was] charged in the informational ; petitioner reaffirmed that he understood. Id. at 81-82. Petitioner said that he had committed the offense with which he was charged, id. at 96, and that he was pleading guilty freely and voluntarily, id. at 89-90, 92-93, 95-96. He also said that he had no questions he wished to ask the court, and that he had discussed everything including possible defenses with his attorney, who was present in court and concurred in his decision to plead guilty. Id. at 16-17, 29-30, 38-39, 53,-87-90. The court found petitioner's guilty plea to be voluntary, knowing, and intelligent, and to be supported by an adequate factual basis. Plea Tr. 90, 99-100. On June 29, 1992, the court entered a judgment of conviction and imposed sentence. Pet. App. B7 . ---------------------------------------- Page Break ---------------------------------------- 5 3. Petitioner appealed only the denial of his motions to suppress. The court of appeals affirmed on February 28, 1994. Lucht, 18 F.3d 541. 4. On December 6, 1995, this Court held, in Bailey v. United States, 116 S. Ct. 501 (1995), that a conviction for use of a firearm under Section 924(c) "requires evidence sufficient to show an active employment of the firearm by the defendant. " Id. 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, the 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. On January 23, 1996, petitioner filed a motion under 28 U.S.C. 2255 contending that, under Bailey, "his conviction and punishment were for conduct which is not criminal under federal law, that he is factually innocent of violating 18 U.S.C. 924(c) (l), and, thus , that his conviction and punishment are fundamentally defective and result in a complete miscarriage of justice." Section 2255 Motion 2; see also id. 25. Petitioner further contended that his "actual[] innocen[ce] " of a Section 924(c) violation entitled him to relief even if" he could not establish cause for his failure to challenge the adequacy of his guilty plea's factual basis on direct appeal from the judgment of conviction. Memorandum in Support of Section 2255 Motion at 13. ---------------------------------------- Page Break ---------------------------------------- 6 The government did not file a formal opposition to petitioner's motion, although it indicated that it opposed the motion and would respond if invited to do so. Letter from U.S. Attorney Thomas J. Monaghan and Assistant U.S. Attorney Daniel A.. Morris to Magistrate Judge David Piester (Feb. 2, 1996) . On March 27, 1996, the district court held that petitioner was "clearly not entitled to the relief he seeks", and dismissed the motion. Pet. App. B1; see also id. at B13-B14. The court reasoned that (1) by pleading guilty, petitioner "waived all non- jurisdictional challenges to his conviction and sentence," id. at B13 , including "any contention that the [government] would be unable to prove the `use or carry' element of 924(c) (1) ," & at B12 n.7, and (2) petitioner had "failed to raise any jurisdictional challenge to his conviction and sentence," id. at B13, by which the court meant that petitioner "simply cannot establish that the face of the indictment failed to charge a federal offense, " ibid Although the court acknowledged that, to be valid, a guilty plea must represent "a voluntary and intelligent choice among the alternative courses of action open to the defendant, " id. at B11 n.6 (internal quotation marks omitted) , the court believed that petitioner "apparently does not challenge the validity of his plea," id. at B12 n.7. The court also believed that "even if [petitioner] had challenged the validity of his plea * * * , such a challenge would have been meritless" for two reasons: first, petitioner had pleaded guilty with the assistance of counsel whose competence he had never questioned and was not now questioning, and ---------------------------------------- Page Break ---------------------------------------- 7 second, petitioners decision to plead guilty was "a voluntary and intelligent choice among the options he faced, i.e., strike the plea bargain and serve thirty years in prison or face trial and a possible sentence well in excess of thirty years." Ibid. On April 2, 1996, petitioner filed a motion for reconsideration of his Section 2255 motion. He maintained that he "did, and does, challenge the validity of his plea" on the ground that it lacked a factual basis and was unknowing and involuntary. Motion for Reconsideration 2. On May 2, 1996, the district court struck the motion on the ground that its filing was not authorized under the Federal Rules of Civil Procedure. Gov't Br. in Opp. to Suggestion for Rehearing En Banc 3. The next day, petitioner filed a notice of appeal. Ibid 6. a. On April 24, 1996, while petitioners motion for reconsideration was pending, the President signed into law the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (Act Or AEDPA). Title I of the Act made changes to the law governing motions for collateral relief made by federal prisoners under 28 U.S.C. 2255. Section 102 of the Act amended 28 U.S.C. 2253 to require a prisoner to obtain a "certificate of appealability" before appealing from a district court's denial of a Section 2255 motion. The new provision states that "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. 2253(c) (l)(B). A certificate of appealability may be issued ---------------------------------------- Page Break ---------------------------------------- 8 "only if the applicant has made a substantial showing of the denial of a constitutional right. " 28 U.S.C. 2253(c) (2). b. On May 28, 1996, the clerk of the court of appeals sent petitioner and his attorney a letter stating that petitioners notice of appeal would be treated as an application for a certificate of appealability under 28 U.S.C. 2253. On December 6, 1996, the court of appeals denied petitioner a certificate of appealability, concluding that he was "not asserting the denial of a constitutional right." Pet. App. Al. In so ruling, the court relied on Hohn v. United States, 99 F.3d 892 (8th Cir. 1996), petition for cert pending, No. 96-8986 (filed May 12, 1997), in which a divided panel of the Eighth Circuit reached the same conclusion and denied a certificate of appealability to a defendant who had unsuccessfully relied on Bailey in a motion under Section 2255 challenging his Section 924(c) conviction. 3 Petitioner filed a suggestion for rehearing en bane. In opposing further review, the government took the position that the panel's decision was correct, and that even if petitioner's challenge to the validity of his guilty plea was constitutional in nature, he had waived that challenge by failing to raise it on direct appeal. Gov't Br. in Opp. to Suggestion for Rehearing en banc 4-10. Rehearing was denied on March 4, 1997. Judge ___________________(footnotes) 3 Senior Judge Henley concurred in the result, stating that he disagreed with the holding in Hohn but agreed that the panel was bound by Hohn. Pet. App. AI-A2. He also suggested that, notwithstanding its plain language, the AEDPA could be interpreted to permit the issuance of certificates of appealability in cases involving purely statutory claims. Id. at A2 . ---------------------------------------- Page Break ---------------------------------------- 9 McMillian, who had dissented in Hohn, voted to grant the suggestion. DISCUSSION In Bousley v. Brooks, cert. granted No. 96-8516 (Sept. 29, 1996) , this Court will consider whether a defendant who pleaded guilty 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) , and who did not challenge the validity of his conviction on direct appeal, may rely on Bailey v. United States, 116 S. ct. 501 (1995) , to attack his conviction under 18 U.S.C. 2255. The petitioner in the present case was convicted of the same offense as the petitioner in Bousley v. Brooks, and he attacks his conviction on the same basis, i.e, that this Court's decision in Bailey undermined the validity of his guilty plea. Although the cases arise in somewhat different procedural postures, 4 the decision in Bousley v. Brooks may substantially affect the proper resolution of the present case. This petition should therefore be held pending the decision in that case. ___________________(footnotes) 4 In the present case, the court of appeals declined to issue petitioner a certificate of appealability under 28 U.S.C. 2253(c) (2), on the theory that petitioner had failed to make "a substantial showing of the denial of a constitutional right. " The petitioner in Bousley was not obliged to obtain a certificate of appealability, because he filed his notice of appeal before the effective date of the AEDPA, which amended 28 U.S.C. 2253 to impose such a requirement upon federal prisoners challenging their convictions under 28 U.S.C. 2255. ---------------------------------------- Page Break ---------------------------------------- 10 CONCLUSION The petition for a writ of certiorari should be held pending this Court's decision in Bousley v. Brooks, No. 96-8516, and then disposed of accordingly. Respectfully submitted. SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General VICKI S. MARANI Attorney OCTOBER 1997