United States v. Thompson

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30394
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARY BETH THOMPSON,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana
October 16, 1998
ON PETITION FOR REHEARING
(Opinion September 23, 1997, 5th Cir., _____F.3d_____)
Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:

The motion for rehearing and motion to stay mandate in this

matter were granted and the court held the opinion in abeyance

pending the Supreme Court’s decision in Bousley v. United States,

___ U.S. ___, 118 S. Ct. 1604 (1998). The original opinion, filed

on September 23, 1997, United States v. Thompson, 122 F.3d 304 (5th

Cir. 1997), is now withdrawn and the following opinion is

substituted in its place.
 Mary Beth Thompson (“Thompson”) appeals the district court’s

denial of her 28 U.S.C. § 2255 motion contending that her

conviction and sentence for using and carrying firearms in relation

to the commission of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1), should be reversed in light of the Supreme

Court’s decision in Bailey v. United States, 516 U.S. 1370 (1995).

We affirm.

FACTS AND PROCEEDINGS BELOW

Thompson was convicted pursuant to a plea bargain for, inter

alia, using and carrying firearms in relation to the commission of

a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).

Thompson’s arrest followed the execution of a search warrant at her

residence. Drug Enforcement Agency (“DEA”) agents found

amphetamine, chemicals used in the manufacturing of amphetamine and

two semi-automatic pistols during the search of Thompson’s house.

The firearms charged to Thompson were found in two different bureau

drawers in a bedroom, with one of the pistols being in a purse

within a bureau drawer. Thompson was not in the bedroom when the

search warrant was executed and no drugs were found in the room in

which the firearms were found.

On September 20, 1989, Thompson pleaded guilty to Count I of

the indictment (conspiracy to dispense and distribute amphetamine

within 100 feet of a school yard) and to Count V (using and

carrying a firearm during a drug trafficking offense). The

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district court sentenced Thompson to 151 months of imprisonment on

Count I, and five years, to run consecutively to the imprisonment

imposed in Count I, on Count V. Thompson did not appeal her

conviction.

On March 8, 1996, Thompson filed this § 2255 motion seeking to

have her conviction and sentence on the firearm charge overturned

in light of the Supreme Court’s decision in Bailey v. United

States, 516 U.S. 1370 (1995). The district court denied the § 2255

motion. Thompson timely appealed the denial to this court, filing

her notice of appeal prior to April 24, 1996, the date on which the

President signed the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214.

DISCUSSION

A.

The AEDPA amended 28 U.S.C. § 2253 to require a certificate of

appealability (“COA”) before an appeal may proceed in a § 2255

action. This court has determined that the COA requirement does

not apply retroactively to petitioners who filed § 2255 appeals in

which the final judgment and notice of appeal were entered before

the AEDPA’s effective date. United States v. Rocha, 109 F.3d 225,

229 (5th Cir. 1997). Likewise, the AEDPA’s certification

requirement regarding successive petitions does not apply. Id.

Accordingly, we proceed to the merits of her appeal.

B.

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 In reviewing a district court’s denial of a § 2255 motion, we

examine the lower court’s factual findings for clear error and its

conclusions of law de novo. United States v. Faubion, 19 F.3d 226,

228 (5th Cir. 1994).

Thompson argues that her conviction for using or carrying a

firearm in relation to a drug trafficking offense should be

overturned because the firearms with which she was charged were not

found on her person, in her possession or within the vicinity of

her arrest and therefore she could not be found to have either

“used” or “carried” the firearms, as required by 18 U.S.C. §

924(c)(1). Thompson contends that under Bailey, she could not have

been convicted based on the mere storage of a firearm near drugs or

drug proceeds.

Section 924(c)(1) is violated when a defendant “during and in

relation to any crime of violence or drug trafficking crime...uses

or carries a firearm.” 18 U.S.C. § 924(c)(1). Under Bailey,

Thompson could not be convicted under the “use” provision for the

firearms found stored in her home. See Bailey, 116 S. Ct. at 505,

508 (“‘use’ cannot extend to encompass [the] action” of

“conceal[ing] a gun nearby to be ready for an imminent

confrontation”).

Because Thompson pleaded guilty to an indictment stating that

she “knowingly used and carried a firearm” (emphasis added), the

Government is only required to prove one of the acts charged, i.e.,

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the use prong or the carry prong. See Turner v. United States, 396

U.S. 398, 420-21 (1970). The district court denied Thompson’s §

2255 motion based on a finding of sufficient evidence to support

Thompson’s conviction under the “carry” prong of § 924(c).

Pursuant to the Supreme Court’s recent opinion in Bousley v.

United States, ___ U.S. ___, 118 S. Ct. 1604 (1998), a petitioner

can successfully petition for § 2255 relief after a guilty plea

only if: (1) the plea was not entered voluntarily or intelligently,

see id. at 1610-11, or (2) the petitioner establishes that she is

actually innocent of the underlying crime. See id. at 1611-12.

In Bousley, a petitioner collaterally attacked his § 924(c)(1)

conviction pursuant 28 U.S.C. § 2255. See id. at 1608-09. Based

on the Supreme Court’s decision in Bailey v. United States, 516

U.S. 137 (1995) -- rendered following his guilty plea -- the

petitioner argued that his plea was not knowingly or intelligently

entered. See Bousley, 118 S. Ct. at 1609.

The Court refused to addressed whether the plea was entered

knowingly and intelligently, because Bousley had procedurally

defaulted by failing to challenge the validity of his plea on

direct review. See id. at 1610. In order to overcome this

procedural default, the Supreme Court required Bousley to show

cause and prejudice or to demonstrate his actual innocence. See

id. at 1611. Further, the Court ruled that Bousley was unable to

show cause for his default, rejecting Bousley’s claims that prior

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to the Supreme Court’s decision in Bailey, a Bailey-type attack on

§ 924(c)(1) conviction was novel or futile. See Bousley at 1611.

Thus, the fact that the law was unsettled, or settled incorrectly

in petitioner’s circuit, did not excuse the petitioner’s failure to

directly attack the validity of his plea. See id.

Next the Court articulated the standard for showing actual

innocence. “To establish actual innocence, petitioner must

demonstrate that, in light of all the evidence, it is more likely

than not that no reasonable juror would have convicted him.” See

Bousley, 118 S. Ct. at 1611 (internal quotation marks

omitted)(quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). The

Court distinguished actual innocence from mere legal insufficiency.

See Bousley, 118 S. Ct. at 1611. Moreover, the Court noted that

the Government could produce any admissible evidence of Bousley’s

guilt in order to sustain the underlying conviction -- not merely

the evidence presented during the plea colloquy. See id. at 1611-

12. With these standards established, the Court remanded the

action to allow Bousley the opportunity to establish his actual

innocence. See id. at 1612.

Like Bousley, Thompson failed to challenge the validity of her

guilty plea on direct appeal and has procedurally defaulted on the

challenge. In order to overcome this default, Thompson must

establish cause and prejudice or actual innocence. In the wake of

Bousley, Thompson’s cause and prejudice argument is foreclosed.

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 Thompson’s only remaining claim is that she is actually

innocent of the charged crime. The Government maintains that

Thompson’s conviction can be sustained under Pinkerton v. United

States, 328 U.S. 640 (1946). In order for the Government to

prevail based on a Pinkerton argument in this context, the evidence

must show that a coconspirator committed the crime which formed the

basis of the conviction challenged by the petitioner. The record

on appeal, which includes the transcript of the Tubblevilles’

trial, established that Thompson’s coconspirator used or carried

the same firearm with which Thompson was charged. Count V of the

indictment charged all three defendants -- Thompson, Travis Wayne

Tubbleville and Jerry Joe Tubbleville -- with using and carrying

the two firearms recovered during the search. Evidence in the

proceedings against Travis Wayne Tubbleville established that,

while in his vehicle in furtherance of the drug conspiracy charged

in Count I (conspiracy to distribute amphetamine within 1000 feet

of a school), and in relation to the drug offense as charged in

Count V (using and carrying a firearm during and relation to the

commission of a drug trafficking crime) Tubbleville “became

concerned that he was being followed by another vehicle and pulled

out a pistol, which he cocked and put between his legs for easy

access.” United States v. Tubbleville, No. 90-3269, at

3(unpublished opinion)(5th Cir. Nov. 7, 1990). Tubbleville was

convicted on Count V of the indictment on the basis of this

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evidence. His actions clearly constitute active employment of the

firearm and satisfy both the use and carry prongs of § 924(c)(1).

See Bailey, 116 S. Ct. at 505. We find such evidence likewise

sufficient to support Thompson’s conviction based on co-conspirator

liability. See United States v. Jensen, 41 F.3d 946, 955-56 (5th

Cir. 1995)(A party to a conspiracy may be held responsible for a

substantive offense committed by a coconspirator in furtherance of

a conspiracy even if that party does not participate in or have

knowledge of the substantive offense.) Further, it is of no

moment that the evidence was not proffered during Thompson’s plea

colloquy. Bousley specifically provides that the Government may

produce non-record evidence of a petitioner’s guilt to rebut actual

innocence arguments. See Bousley, 118 S. Ct. at 1611-12. Based on

the Pinkerton theory of co-conspirator liability, Thompson’s claim

of innocence cannot succeed, and the record being sufficient, we

have no need to remand for an evidentiary hearing.

Based on the foregoing, we conclude that the district court’s

order denying Thompson’s habeas petition must be affirmed.

AFFIRMED.

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DeMOSS, Circuit Judge, dissenting in part and concurring in part:

I concur in the majority’s determination that the Supreme

Court’s recent decision in Bousley v. United States, ___ U.S. ___,

118 S. Ct. 1604 (1998), forecloses Thompson from contending that

her guilty plea was not entered into knowingly and intelligently

because the decision of the Supreme Court in Bailey v. United

States, 516 U.S. 137, 116 S. Ct. 501 (1995), changed the law as to

what constituted "use" of a firearm under 18 U.S.C. § 924(c)(1).

Like the defendant in Bousley, Thompson failed to challenge the

validity of her guilty plea on direct appeal and has procedurally

defaulted as to that challenge.

However, I cannot join the majority in depriving Thompson of

the relief which the Supreme Court so clearly indicated in Bousley

was available, i.e. the opportunity to establish her "actual

innocence" in an evidentiary hearing before the district court.

Rather than remanding this case to the district court for such an

evidentiary hearing on "actual innocence" the majority reads

Bousley as permitting this Circuit Court to make the determination

of "actual innocence" based upon the evidence which the panel

majority finds available in the record of Thompson’s appeal. I

find nothing in Bousley which supports this short circuiting of the
opportunity to establish "actual innocence" in an evidentiary

hearing at the district court level. Consequently, I disagree with

the panel majority that we have any jurisdiction to make that

factual determination in this appeal.

Secondly, the panel majority, in arriving at its conclusion

that Thompson could not prove she was "actually innocent," relies

on testimony and evidence presented during the trial of Travis

Wayne Tubbleville and Jerry Joe Tubbleville who were co-defendants

in the same indictment in which Thompson was charged. However,

Thompson pled guilty to two counts in this indictment some three or

four weeks before the Tubbleville trial even began; and

consequently neither Thompson nor her counsel were present during

the Tubbleville trial. Using testimony presented in the

Tubbleville trial clearly deprives Thompson of her right to

confront and cross-examine the witness against her. Furthermore,

I see nothing which would permit us to conclude that the transcript

of the Tubblevilles’ trial is part of Thompson’s record on appeal.

I see nothing in the record which would indicate that the

transcript of the Tubblevilles’ trial was introduced as evidence

before the district court on Thompson’s § 2255 hearing and I see no

reference whatsoever in the district court’s opinion to any of the

testimony in the Tubblevilles’ trial. I am confident that if

Thompson had been represented by counsel, rather than being pro

se, the process by which counsel for the government slipped in the

references to the testimony in the Tubblevilles’ trial would have

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been promptly nipped in the bud.

Lastly, I cannot join the panel majority’s short circuiting of

the actual innocence determination by relying on the vicarious

liability theory of Pinkerton v. United States, 328 U.S. 640

(1946). I do not think the Pinkerton theory applies in this case

for two reasons:

a. First of all, the only conspiracy count in the indictment

against Thompson and the Tubblevilles was Count I, which asserted

a conspiracy to dispense and distribute amphetamine within 1,000

feet of a public school. There is absolutely nothing in that

conspiracy count relating to the "using or carrying of firearms."

It seems axiomatic to me that a conspiracy to dispense and

distribute amphetamines can be implemented and performed without

"using or carrying" a firearm; and therefore the scope of that

conspiracy would not include anything about using or carrying

firearms. There is no evidence or testimony whatsoever in this

record upon which a conclusion could be drawn that in conspiring to

dispense and distribute amphetamines Thompson and the Turblevilles

necessarily agreed to use and carry firearms.

b. Secondly, in Count V, which is the using or carrying a

firearm count, alleges that Thompson used or carried the firearm

during and in relation to her commission of Count IV. Count IV

charged possession with intent to manufacture and distribute

amphetamines. Thompson did not plead guilty to Count IV of the

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indictment. Moreover, Count IV of the indictment is a pure

substantive offense count and has no conspiracy aspects to it

whatsoever.

In sum, I am unable to make the incredible stretch required to

conclude that the testimony entered in the Tubblevilles’ trial can

support a Pinkerton vicarious liability finding against Thompson on

the basis of evidence and testimony which Thompson never had an

opportunity to cross-examine where Thompson did not plead guilty to

the underlying predicate offense, and where the only conspiracy

charged did not involve using or carrying a firearm.

In my view Bousley requires us to remand this matter to the

district court for an evidentiary hearing in which Thompson would

have the opportunity to prove she was actually innocent of "using

or carrying a firearm" during and in relation to Count IV, as

charged in Count V. My colleagues obviously think that Thompson

could not carry the burden of proving her "actual innocence," but

well-established Supreme Court law mandates that that is a judgment

to be explored and determined by the district court.

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