Bousley v. United States
Decided May 18, 1998; 523 US 614


A. Issues Discussed: Criminal justice (drugs), habeas corpus

 B. Legal Question Presented:

May defendants who pleaded guilty to "using" a firearm in violation of 18 USC section 924
(c)(1) contest the validity of their convictions by claiming that their guilty pleas were not knowing and intelligent because they were misinformed by the District Court as to the nature of the charged crime?

A. Background:
In 1990 the Petitioner pleaded guilty to using a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §924(c)(1) and also to drug possession with intent to distribute. Five years later, in Bailey v. United States the Supreme Court held that 18 U.S.C. § 924(c)(1)’s "firearm use" prong requires the Government to show "active employment of the firearm." In the case of Petitioner, the firearms were located in the living room and the drug trafficking took place in the garage.

In June 1994 Petitioner filed a Writ of Habeas Corpus requesting that his conviction be vacated and that Bailey be applied retroactively. The District Court dismissed the petition, and, on appeal, the Court of Appeals affirmed and rejected Petitioner’s argument that his guilty plea was not knowing and intelligent because he was misinformed about the elements of the offense.

The Supreme Court granted certiorari to resolve a split among the Circuits over the permissibility of post-Bailey collateral attacks on §924(c)(1) convictions obtained pursuant to guilty pleas.
B. Counsel of Record:
Opposing Side
L. Marshall Smith argued the case for Petitioner and filed a brief.

Deputy Solicitor General Dreeben argued the case for Respondent. Joining him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Keeney, Roy w. McLeese III, and Vicki S. Marani
C. The Arguments:
Opposing Side
"[The] defendant is in prison for acts that do not amount to a crime. This Court's unanimous opinion in the Bailey case made it clear that mere possession of weapons near drugs does not amount to use under the Federal statute under which Mr. Bousley was convicted.

It is at the core of habeas corpus jurisprudence to release prisoners who are held without legal authority. Mr. Bousley is in this position because at the time he entered his guilty plea to the charge under 924(c) the charges had been explained to him in language of possession. However, the Bailey case makes it clear that one cannot be convicted of this--violating this statute lest there's been proof of active employment [of the firearm]."
–Oral Argument of L. Marshall Smith on behalf of Petitioner

"If I could talk for a minute about procedural default, because not only did this petitioner commit what we would call the ultimate act of procedural default by pleading guilty, but then it was compounded by his failure to appeal on the gun charge after he was convicted, and the record again shows that he knew what his rights were, but he waived them.

And as Justice O'Connor has indicated, there was plenty of litigation going on around the country, and we agree with the Government that there is no cause for his failure to assert his gun rights on the original appeal. It was not futile, and even perceived futility under Engle v. Isaac and Smith v. Murray is not cause, so he procedurally defaulted...“
–Oral argument of Thomas C. Walsh


Opposing Side
Briefs filed by Larry W. Yackle and Steven R. Shapiro of the ACLU and Bonnie I. Robin-Vergeer, David M. Porter, and Kyle O’Dowd of the National Association of Criminal Defense Lawyers urging reversal. Thomas C. Walsh filed an amicus brief urging affirmance. Joining him on the brief was Briand C. Walsh

"Only a voluntary and intelligent guilty plea is constitutionally valid... A plea is not intelligent unless a defendant first receives real notice as to the nature of the charge against him... Petitioner’s plea would be, contrary to the Eighth Circuit’s view, constitutionally invalid if he proved that the District Court misinformed him as to the elements of a §924(c)(1) offense...

While [Petitioner’s] appeal was pending, we held in Bailey that a conviction
for use of a firearm under §924(c)(1) requires the Government to show ‘active employment of the firearm... As we explained, active employment includes use such as ‘brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire’ the weapon... but that does not include mere possession of the firearm. Thus, a ‘defendant cannot be charged under §924(c)(1) merely for storing a weapon near drugs or drug proceeds…'

We have strictly limited the circumstances under which a guilty plea may be attacked on collateral review… And even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review. Habeas review is an extraordinary remedy and ‘will not be allowed to do service for an appeal...' In this case petitioner contested the sentence on appeal, but did not challenge the validity of his plea. In failing to do so, petitioner procedurally defaulted the claim he now presses on us...

Petitioner’s claim may still be reviewed in this collateral proceeding if he can establish that the constitutional error in his plea colloquy ‘has probably resulted in the conviction of one who is innocent...' Accordingly we believe it appropriate to remand this case to permit petitioner to attempt to make a showing of actual innocence..."

Held: The judgment is reversed and remanded.
Justice Vote: 7 Pro vs. 2 Con
  • Rehnquist, W. Pro (Wrote majority opinion)
  • O'Connor, S. Pro (Joined majority opinion)
  • Kennedy, A. Pro (Joined majority opinion)
  • Souter, D. Pro (Joined majority opinion)
  • Ginsburg, R. Pro (Joined majority opinion)
  • Breyer, S. Pro (Joined majority opinion)
  • Stevens, J. Pro (Wrote concurring dissenting opinion)
  • Scalia, A. Con (Wrote dissenting opinion)
  • Thomas, C. Con (Joined minority opinion, joined Scalia's dissent)

    The ACLU, as amicus curiae, urged reversal of the judgment of the 8th Circuit Court of Appeals; the Supreme Court reversed in a 7-2 vote, giving the ACLU an apparent win.