No. 97-5655 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 JEFFERY B. DURHAM, 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 IN OPPOSITION SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General NINA GOODMAN Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether petitioner's motion pursuant to 28 U.S.C. 2255, which alleged that his conviction under 18 U.S.C. 924(c) was invalid because of an erroneous jury instruction on the element of "use" of a firearm, made a "substantial showing of the denial of a constitutional right," as required to obtain a certificate of appealability under 28 U.S.C. 2253(c) (2) . 2. Whether petitioner was required to obtain a certificate of appealability in order to appeal the denial of his 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. (I) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1997 No. 97-5655 JEFFERY B. DURHAM, 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 IN OPPOSITION OPINION BELOW The judgment order of the court of appeals (Pet. App. 4) is unreported. JURISDICTION The judgment of the court of appeals was entered on March 4, 1997. A petition for rehearing was denied on March 31, 1997. The petition for a writ of certiorari was filed on June 20, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the Western District of Missouri, petitioner was convicted of ---------------------------------------- Page Break ---------------------------------------- 2 conspiring to distribute cocaine and attempting to possess cocaine with the intent to distribute it, in violation Of 21 U.S.C. 846; assaulting federal officers, in violation of 18 U.S.C. 111; and using or carrying a firearm during and in relation to drug trafficking offense, in violation of 18 U.S.C. 924(c). He was sentenced to a concurrent terms of 51 months' imprisonment on the drug and assault charges, and to a consecutive term of 60 months' imprisonment on the firearms charge. Petitioner appealed his convictions and the court of appeals affirmed. United States v. Searing, 984 F.2d 960 (8th Cir. 1993). Petitioner then filed a motion under 28 U.S.C. 2255, challenging his conviction under 18 U.S.C. 924(c) (1). The district court denied the motion. Pet. App. 1-3. Petitioner filed a notice of appeal, but the court of appeals refused to issue a certificate of appealability. Id. at 4. 1. The evidence at trial showed that United Parcel Service employees contacted agents of the Drug Enforcement Administration after discovering cocaine in a package petitioner had shipped from California to Christopher Rahberger's residence in Kansas City, Missouri. The agents then made a controlled delivery of the package to the Rahberger residence. Petitioner's housemate, Chet Searing, arrived at the residence shortly after the package was delivered. Searing telephoned petitioner and then left the residence carrying a loaded gun and the package. After arresting Searing, the agents executed a warrant to search the residence. ---------------------------------------- Page Break ---------------------------------------- 3 During the search, petitioner telephoned and asked to speak to Rahberger. The agent who answered the telephone refused the request, and an angry exchange followed, during which petitioner threatened to "kick" the agent's "ass." A short time later, petitioner burst into the residence, brandishing a loaded handgun. The agents identified themselves and subdued petitioner. United States v. Searinq, 984 F.2d at 963, 967; see Government's Response in Opposition to Defendant's 28 U.S.C. 2255 Motion (Gov't Opp.) 2-3. The district court gave the following jury instruction on the Section 924(c) count: The crime of using and carrying a firearm during and in relation to a drug trafficking crime, as charged in Count Three, has two essential elements, which are: (1) Defendant Jeff[er]y Durham committed the crimes of conspiracy to distribute cocaine as alleged in Count One, or attempting to possess cocaine with intent to distribute as alleged in Count Two, or both. (2) During and in relation to the commission of those crimes the defendant knowingly used and carried a firearm. The phrase "used a fiream" means having a firearm available to aid in the commission of a drug trafficking crime. For you to find defendant Jeff[er]y Durham guilty of the crime charged in Count Three, the government must prove all of the essential elements beyond a reasonable doubt as to that defendant. Otherwise, you must find that particular defendant not guilty of this crime under Count Three. Pet. App. 2 n.2. 2. On appeal, petitioner argued, among other things, that the evidence was insufficient to support his conviction under 18 ---------------------------------------- Page Break ---------------------------------------- 4 U.S.C. 924(c) (1) . The court of appeals affirmed petitioner's convictions on January 29, 1993. United States v. Searing 984 F.2d 960 (8th Cir. 1993) . In rejecting petitioner's challenge to his Section 924(c) conviction, the court noted that a reasonable jury could easily believe that when [petitioner] arrived at the Rahberger residence, he was trying to recover the cocaine. Bursting through the front door, brandishing a loaded weapon, in an attempt to rectify a drug delivery gone awry is clearly using a deadly weapon during a drug trafficking offense. Id. at 966. 3. 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, 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 4. On April 17, 1996, petitioner filed a motion pursuant to 28 U.S.C. 2255, arguing that, under Bailey, the jury instruction at his trial defining "use" of a firearm was erroneous, and that the incorrect instruction "effectively removed from the jury's consideration an essential element of the offense and relieved the government of its burden of proof." Memorandum in Support of Motion to Vacate, Set Aside, or Correct Sentence 16. In response, the government contended that petitioner was ---------------------------------------- Page Break ---------------------------------------- 5 not entitled to relief under Bailey because, among other things, the evidence at trial was sufficient to show that petitioner had "carried" a firearm. Gov't Opp. 6-7; Government's Response in Opposition to Defendant's Supplemental 28 U.S.C. 2255 Motion (Gov't Supp. Opp.) 6-7. The government noted that the evidence showed that petitioner "bore a firearm on his person" when he "went to the residence to retrieve the package of cocaine." Gov't Opp. 7. The government acknowledged that, under Bailey, the jury instructions at petitioner's trial erroneously defined the word "use," Gov't Supp. Opp. 4, but it contended that the error was harmless because the jury was instructed that it must find that petitioner "'used and carried a firearm,' " and "there was overwhelming evidence that [petitioner] 'carried' a firearm." Gov't Opp. 6; see Gov't Supp. Opp. 6-7. On January 6, 1997, the district court denied petitioner's Section 2255 motion. Pet. App. 1-3. Although the court agreed that "the pre-Bailey instruction relating to 'use' of a firearm was incorrect," id. at 2, it concluded that "[b]ecause the evidence that [petitioner] 'used' and 'carried' the weapon was overwhelming, and because the jury was not improperly instructed with respect to the [petitioner's] `carrying' of a weapon," the error in the jury instruction was harmless. Id. at 3. 5. a. On April 24, 1996, while petitioner's Section 2255 motion was pending. in the district court, 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 ---------------------------------------- Page Break ---------------------------------------- 6 I of the Act made changes to the law governing motions for collateral relief for 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 his Section 2255 motion. The new provision states that "[u]nless 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)(1) (B). A certificate of appealability may be issued "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 January 15, 1997, petitioner filed a notice of appeal from the district court's order denying his Section 2255 motion. Pet. 6. The court of appeals, however, denied him a certificate of appealability. Pet. App. 4. ARGUMENT 1. Petitioner contends (Pet. 7-13) that the erroneous jury instruction on the "use" element of Section 924 (c) deprived him of the right to have a jury determine his guilt of every element of the offense and that therefore his motion under Section 2255 made a "substantial showing of the denial of a constitutional right." That claim lacks merit. The jury at petitioner's trial was instructed that, in order to convict petitioner on the Section 924(c) count, it must find that he "used and carried a firearm." Pet. App. 2 n.2. As the ---------------------------------------- Page Break ---------------------------------------- 7 court of appeals stated in affirming petitioner's conviction on direct appeal, the evidence before the jury showed that petitioner "burst into the [Rahberger] residence brandishing a loaded gun." l 984 F.2d at 963. That evidence established as a matter of law that petitioner both "carried" and "used" the firearm within the meaning of Section 924(c) . See, e.g., United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997) ("the plain meaning of the term 'carry' as used in 924(c) (1) requires knowing possession and bearing, movement, conveyance, or transportation of the firearm in some manner") . And because the jury instruction was phrased in the conjunctive ("used and carried") the jury necessarily found that petitioner carried the firearm. Moreover, the jury found petitioner guilty of assaulting federal officers based on the same evidence that supported his Section 924 (c) conviction. Thus , the jury necessarily had to find facts that established a "use" of the firearm as that term was construed in Bailey. See Bailey, 116 S. Ct. at 508 ("use" includes "brandishing") . Under these circumstances, the district court correctly concluded that the erroneous jury instruction on the term "use" was harmless. 2 ___________________(footnotes) 1 Petitioner acknowledges (Pet. 3) that he "was in possession of a firearm" when he "entered the residence." 2 See, e.g., United States v. Holland, 116 F.3d 1353, 1359 & n.4 (10th Cir.), cert. denied, No. 97-5648 (Oct. 6, 1997); United States v. Chirinos, 112 F.3d 1089, 1096-1097 (llth Cir.), petitions for cert. pending, Nos. 97-5023 and 97-5738 (filed June 30, 1997 and Aug. 25, 1997) ; United States v. Miner, 108 F.3d 967, 969-970 (8th Cir.), cert. denied, No. 97-5740 (Oct. 6, 1997); United States v. Taylor, 102 F.3d 767, 771 (6th Cir. 1996), cert. denied, No. 97-6003 (Oct. 14, 1997); United States ---------------------------------------- Page Break ---------------------------------------- 8 Accordingly, petitioner's claim does not satisfy Section 2253(c) (2)'s requirement of a "substantial showing of the denial of a constitutional right." 2. Petitioner also contends (Pet. 13-15) that he was not required to obtain a certificate of appealability because his Section 2255 motion was pending in the district court on April 24, 1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act. Although that issue is the subject of a circuit conflict, petitioner's claim lacks merit, the issue is of no prospective importance, and resolution of the issue in petitioner's favor would not in any event afford petitioner any relief. Because petitioner did not file a notice of appeal until after the AEDPA's effective date, the certificate-of- appealability requirement did apply to petitioner. In Lindh v. Murphy, 117 S. Ct. 2059 (1997), this Court concluded that Congress generally intended "to apply the [AEDPA] amendments to chapter 153 only to such cases as were filed after the statute's enactment." Id. at 2063; see id. at 2068. In so holding, the Court reasoned that the express provision that the Act's ___________________(footnotes) v. Pimentel, 83 F.3d 55, 59-60 (2d Cir. 1996); United States v. Baker, 78 F.3d 1241, 1247-1248 (7th Cir. 1996), cert. denied, 117 S. Ct. 1720 (1997); United States v. Price 76 F.3d 526, 529-530 (3d Cir. 1996). But see United States v. Wilson, 116 F.3d 1066, 1090 (5th Cir.) (although erroneous Section 924(c) instruction was harmless because "the jury could not have improperly convicted [the defendant] for a 'use' that would not also support a proper conviction for carrying a weapon," the court was "nevertheless constrained by [its] own precedent" to vacate defendant's conviction), rehearing en banc granted sub nom. United States V. Brown, 123 F.3d 213 (5th Cir. 1997) . ---------------------------------------- Page Break ---------------------------------------- 9 amendments to Chapter 154 of Title 28 "shall apply to cases pending," AEDPA 107(c), implied that the Act's amendments to Chapter 153 of Title 28 should not apply to pending cases. The Act's provision requiring a certificate of appealability for federal prisoners is an amendment to Chapter 153 of Title 28; accordingly, under Lindh, that provision does not apply to "cases pending" on April 24, 1996. The facts of Lindh, however, did not involve a petition for post-conviction relief in which the appeal was filed after the effective date of the Act. See id. at 2061- 2062. And the Court did not address whether, for purposes of the applicability of the certificate-of-appealability requirement, the "case" that has to be pending on the effective date of the Act is the "case" on appeal or the original "case" filed in the district court. In this case, petitioner's motion for relief was filed in the district court before the effective date of the Act, but his case on appeal was filed after the effective date of the Act . Such a case is subject to the Act's certificate of appealability requirement because the appeal the relevant case -- was neither "filed" nor "pending" on April 24, 1996. Although the Eighth Circuit has agreed with that approach, see Tiedeman v. Benson, 122 F.3d 518, 521 (8th Cir. 1997) (certificate of appealability is required whenever the notice of appeal is filed after the effective date of the Act; "we can think of no reason why a new provision exclusively directed towards appeal procedures would depend for its effective date on the filing of a case in a trial court, instead of on the filing ---------------------------------------- Page Break ---------------------------------------- 10 of a notice of appeal or similar document") , seven courts of appeals have held, since Lindh, that the certificate-of- appealability requirement does not apply to petitions for post- conviction relief that were filed in the district court before the effective date of the Act. 3 The disagreement between those courts and the court below, however, concerns an issue that is of rapidly diminishing importance. Its principal remaining significance is for the dwindling set of Section 2255 cases filed before April 24, 1996, in which no appeal has yet been taken. Moreover, because petitioner's claim clearly fails on the merits, resolution of the certificate-of-appealability issue would not affect the outcome of this case. Accordingly, review by this Court to resolve the disagreement among the circuits on the issue is not warranted. 4 ___________________(footnotes) 3 United States v. Kunzman, No. 96-1310, 1997 WL 602507, at *3 (10th Cir. Oct. 1, 1997); Koo v. McBride, No. 96-2271, 1997 WL 549557, at *1-*2 (7th Cir. Sept. 3, 1997); United States v. Skandier, No. 97-3129, 1997 WL 581662, at *1-*5 (3d Cir. Aug. 22, 1997); Hardwick v. Sinqletary, 122 F.3d 935, 936 (11th Cir. 1997); Nelson v. Walker, 121 F.3d 828, 831-832 (2d Cir. 1997); Arredondo v. United States, 120 F.3d 639, 640 (6th Cir. 1997); United States v. Carter, 117 F.3d 262, 264 (5th Cir. 1997). 4 The Court has denied certiorari in five cases in which courts of appeals applied the certificate-of-appealability requirement to cases (like this one) that were pending in the district court on the effective date of the Act, but in which a notice of appeal was not filed until after that date. Matthews v. United States, No. 96-8310, cert. denied, 117 S. Ct. 2485 (1997) ; Zarnes V. United States, No. 96-1324, cert. denied S. Ct. 1842 (1997); Durham V. United States, No. 96-7329, cert. denied, 117 S. Ct. 1699 (1997); England v. United States, No. 96- 6826, cert. denied, 117 S. Ct. 969 (1997); Travis v. United States, No. 96-6585, cert. denied, 117 S. ct. 968 (1997). ---------------------------------------- Page Break ---------------------------------------- 11 CONCLUSION The petition for a writ of certiorari should be denied. 5 Respectfully submitted. SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General NINA GOODMAN Attorney OCTOBER 1997 5 There is no reason to hold this case pending the decision in Bousley V. Brooks, cert. granted, No. 96-8516 (Sept. 29 1997) . The issue in Bousley is whether a defendant who pleaded guilty to violating Section 924(c) can rely on this Court's subsequent decision in Bailey, 116 S. Ct. 501, to attack his conviction under 28 U.S.C. 2255. This Court's resolution of the issue presented in Bousley will not affect the proper disposition of the present case.