Revised January 8, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50308
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUDY VILLARREAL TORRES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
January 7, 1999
Before WISDOM, WIENER, and DENNIS, Circuit Judges.
WISDOM, Senior Circuit Judge:
I. Introduction
Rudy Villarreal Torres pleaded guilty to possession with
intent to distribute heroin, in violation of 21 U.S.C. § 841(a),
and carrying a firearm during and in relation to a drug
trafficking offense, in violation of 18 U.S.C. § 924(c).1 A
1
The statute reads, in pertinent part: “Whoever, during and
in relation to any crime of violence or drug trafficking crime
for which he may be prosecuted in a court of the United States,
uses or carries a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking crime, be
1
chrome-plated .38-caliber handgun and the heroin were found under
the driver’s seat in Torres’s car. The district court sentenced
Torres to a 51-month term of imprisonment on the drug count and a
60-month term of imprisonment on the firearm count. The
sentences were to be served consecutively and were to be followed
by a three-year period of supervised release. Torres did not
file a direct appeal.
Torres filed a pro se motion under 28 U.S.C. § 2255
challenging his § 924(c)(1) firearm conviction. He asserted that
the conviction could no longer stand in the wake of the Supreme
Court’s interpretation of § 924(c)(1) in Bailey v. United
States,2 a case decided after his conviction.3 In Bailey, the
Court held that the Government, to sustain a conviction under the
“use” prong of 18 U.S.C. § 924(c)(1), must prove that a defendant
sentenced to imprisonment for five years.”
2
516 U.S. 137 (1995).
3
Like most other courts of appeal, we have held that Bailey
retroactively applies to cases pending on collateral review. See
United States v. Sorrells, 145 F.3d 744, 748-49 (5th Cir. 1998).
“Although Bailey itself is a non-constitutional case involving
the statutory interpretation of § 924(c)(1), we have held that
petitioners asserting that a § 924(c)(1) conviction is invalid in
light of Bailey can properly bring their claims in a § 2255
motion.” Id. at 749; United States v. Gobert, 139 F.3d 436, 438-
39 (5th Cir. 1998) (“Even though Bailey itself is a statutory,
non-constitutional case, it does not necessarily follow that a
prisoner’s post-Bailey petition for collateral relief sounds in
statutory, non-constitutional law.”).
2
actively employed a firearm during the predicate drug offense.4
Torres’s argument, construed liberally,5 is that Bailey
undermined the factual basis for his guilty plea to the firearm
count, and thus rendered his conviction thereunder unsupportable.
In its response, the Government asserted that because Torres
could have raised his assertion that the factual basis did not
support his guilty plea to “carrying” a firearm on direct appeal,
his claim was procedurally barred. Additionally, the Government
maintained that even if the court were to reach the merits of
Torres’s claim, the facts supported his conviction for carrying a
firearm.
Without addressing the question of procedural bar, the
magistrate judge recommended that Torres’s motion be denied on
the grounds that his reliance on Bailey was misplaced, and that
the facts supported his guilty plea. Relying on Torres’s guilty
plea and the admittance of the factual statement offered at the
guilty plea hearing, the magistrate judge concluded that Torres
admitted to “carrying” a firearm as contemplated by § 924(c)(1).
Over Torres’s objections, the district court adopted the
magistrate judge’s report and recommendation and denied § 2255
relief. Torres timely filed his notice of appeal. For the
4
Bailey, 516 U.S. at 150.
5
We construe liberally the claims of pro se appellants.
Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993).
3
reasons that follow, we affirm.
II. Background
On the morning of August 17, 1990, Bexar County, Texas,
deputy sheriffs were conducting surveillance outside a San
Antonio residence that was the subject of a search warrant.
During the course of their surveillance, the deputies observed
Torres walk from the residence to a car parked in the driveway.
He retrieved a brown paper bag from the trunk of the car and
returned to the residence. Two hours later, Torres and a female
companion exited the residence and approached two cars in the
driveway. The deputies blocked the driveway, surrounded Torres,
and advised him and his companion of the search warrant. After
the deputies issued Miranda warnings, Torres agreed to cooperate
and showed the deputies bags of heroin that were hidden in his
car under the driver’s seat and under the dashboard. He also
pointed to the handgun under the driver’s seat. He admitted
ownership of both the heroin and the handgun. The deputies’
search of the car and residence yielded $11,061 in currency and
approximately 200 grams of heroin. Torres told the deputies that
the money was generated by his heroin sales over the previous two
days.
III. Standard of Review
We review the district court’s findings of fact in relation
to a motion filed under a § 2255 for clear error, and we review
4
questions of law de novo.6
IV. Discussion
We first confront the procedural barrier to considering
Torres’s Bailey claim. In the instant case, Torres did not file
a direct appeal. Consequently, we must consider the government’s
procedural default argument before proceeding to the merits of
Torres’s appeal. In general, “[i]t is well settled that where a
defendant has procedurally defaulted a claim by failing to raise
it on direct review, the claim may be raised in a § 2255 motion
only if the petitioner can first demonstrate either (1) cause and
prejudice, or (2) that he is ‘actually innocent’ of the crime for
which he was convicted.”7 With specific regard to Bailey claims,
however, a defendant’s means of overcoming procedural default is
more limited. Under our decision in United States v. Sorrells,8
a petitioner asserting a Bailey claim must rely on the “actual
innocence” prong of the standard to overcome a procedural
default.9 Because Torres did not raise his arguments at trial or
6
Gobert, 139 F.3d at 437.
7
Sorrells, 145 F.3d at 749 (citing Bousley v. United
States, 118 S.Ct. 1604, 1611 (1998).
8
145 F.3d 744 (5th Cir. 1998).
9
Id. at 749-50 (citing Bousley, 118 S.Ct. at 1611). In
Sorrells, we had occasion to examine the impact of the Supreme
Court’s Bousley decision on the standard for overcoming
procedural default in the context of Bailey claims. In
Sorrells, we noted that Bousley had altered a “relatively
straightforward” standard, as the Court had “clarified that a
5
on direct appeal, we apply this standard of review to the instant
case.10
In essence, then, Torres can only overcome his procedural
default if he establishes that he was “actually innocent” of his
§ 924(c)(1) conviction.11 This standard imposes a heavy burden
on a petitioner.12 “To establish actual innocence, [the]
petitioner must demonstrate that, ‘in light of all the evidence,’
‘it is more likely than not that no reasonable juror would have
convicted him.’”13 Indeed, “‘actual innocence’ means factual
petitioner seeking collateral review for a Bailey claim must
demonstrate ‘factual innocence’ if he failed to raise the issue
on direct appeal.” Id. at 750 (citing Bousley, 118 S.Ct. at
1611) (emphasis added).
10
The district court’s failure to consider the Government’s
argument that Torres’s § 2255 petition was barred by procedural
default and its denial of § 2255 relief on an alternate ground
does not constitute reversible error. Indeed, any such error by
the district court is harmless, and the court may find Torres’s
claim procedurally barred as an independent ground supporting
affirmance. See Sorrells, 145 F.3d at 751 n.5 (“[W]here the
standard of review on appeal would be identical because of the
petitioner’s procedural default, the record is fully established
. . ., and neither party seeks a remand for a determination on
the abuse of the writ question, the district court’s error is
undoubtedly harmless.”).
11
See id. at 750 (citation omitted); Murray v. Carrier, 477
U.S. 478, 496 (1986) (“[I]n an extraordinary case, where a
constitutional violation has probably resulted in the conviction
of one who is actually innocent, a federal habeus court may grant
the writ even in the absence of a showing of cause for the
procedural default.”).
12
See Sorrells, 145 F.3d at 750 (citation omitted).
13
Bousley, 118 S.Ct. at 1611 (quoting Schlup v. Delo, 513
U.S. 298, 327-28 (1995)).
6
innocence, not mere legal insufficiency.”14 Consequently, we
will reverse Torres’s firearm conviction only if he can
demonstrate, based on all of the evidence, that “it is more
likely than not that no reasonable juror would have convicted.”15
In the case at bar, Torres cannot demonstrate that he is
“actually innocent.”16 Torres owned the car in which the firearm
was found. He admitted that he owned the heroin found in the
car. He admitted that he owned the firearm found under the
driver’s seat. Torres was arrested, not at his own home, but at
the home of his companion. Based on these facts, it is
reasonable that a juror could have inferred that Torres did, in
fact, “carry” the firearm during and in relation to the drug-
trafficking offense.17 It cannot be said that “it is more likely
14
Id.
15
Id. We apply this “reasonable juror” standard even
though the petitioner’s conviction was obtained pursuant to a
guilty plea. In Bousley, the Supreme Court noted that, to
establish actual innocence, the petitioner, who was convicted as
a result of a guilty plea, “must demonstrate that . . . it is
more likely than not that no reasonable juror would have
convicted him.” Id.
16
It is worth noting that Torres has not, at any point,
asserted that he is “actually innocent.” He did not assert
“actual innocence” on direct appeal, in his § 2255 motion, in his
appellate brief, in his supplemental brief, or in his “Traverse”
brief.
17
The phrase, “carries a firearm,” in § 924(c)(1) is not
limited to the carrying of firearms on one’s person. Muscarello
v. United States, 118 S.Ct. 1911, 1913 (1998). Indeed, the
phrase “also applies to a person who knowingly possesses and
conveys firearms in a vehicle” in relation to a drug offense.
7
than not that no reasonable juror would have convicted.”18
Accordingly, Torres fails to overcome his procedural default, and
we need not reach the merits of his Bailey claim.19
Torres also raises an ineffective assistance of counsel
Id.
18
Bousley, 118 S.Ct. at 1611.
19
It may be argued that the Supreme Court’s decision in
Bousley requires that we vacate the judgment of the district
court and remand the case to it for the “actual innocence”
determination we have just made. Bousley is distinguishable,
however. In Bousley, the defendant pleaded guilty to “using” a
firearm. After he entered his plea, he sought § 2255 relief on
the basis that his guilty plea was not knowing and intelligent
because he was misinformed by the district court as to the nature
of the charged crime. Specifically, he argued that neither he,
nor counsel, nor the court correctly understood the essential
elements of the crime with which he was charged. The district
court dismissed the defendant’s § 2255 motion, and he appealed.
While this appeal was pending, the Supreme Court issued its
opinion in Bailey, which interpreted the “use” prong of 18 U.S.C.
§ 924(c). The main issue in Bousley was whether a defendant
could rely on Bailey in support of his claim that his guilty plea
was constitutionally infirm. See id. at 1607-10. The Court held
that “it would be inconsistent with the doctrinal underpinnings
of habeus review to preclude [the defendant] from relying on . .
. Bailey in support of his claim that his guilty plea was
constitutionally invalid.” Id. at 1610. Though the defendant
had procedurally defaulted, the Court maintained that his claim
could still be reviewed if he could establish that the
constitutional error in his plea colloquy had “probably resulted
in the conviction of one who is actually innocent.” Id. at 1611
(quoting Murray, 477 U.S. at 496). The Court then remanded the
case to permit the defendant to attempt to make a showing of
actual innocence. Id. Here, in contrast to the defendant in
Bousley, Torres argues that Bailey, itself, renders his
conviction suspect. That is, were it not for Bailey, Torres
would have no gripe with the district court’s acceptance of his
guilty plea. In Bousley, on the other hand, the defendant did
not rest his claim that his plea was not knowing and voluntary on
Bailey.
8
claim. This claim is without merit. “The benchmark for judging
any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just
result.”20 To prevail on such a claim, a petitioner must
demonstrate that (1) his counsel’s performance was deficient and
(2) that this deficient performance prejudiced his defense.21 To
satisfy the first requirement, the petitioner must show “that
counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the [petitioner] by the Sixth
Amendment.”22 As to the second requirement, the petitioner must
demonstrate “that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is
unreliable.”23
In the instant case, Torres has neither shown, nor does the
record indicate, that his counsel’s assistance was
constitutionally substandard. Torres therefore fails to satisfy
the first prong of the Strickland test, and we need not determine
whether he has suffered prejudice.
V. Conclusion
20
Strickland v. Washington, 466 U.S. 668, 686 (1984).
21
Id. at 687.
22
Id.
23
Id.
9
For the foregoing reasons, we find that the petitioner
failed to overcome his procedural default, and did not receive
ineffective assistance of counsel. The judgment of the district
court is AFFIRMED.
10
DENNIS, J., Circuit Judge, concurring:
I specially and respectfully concur in the result of the
majority opinion upholding the dismissal of Torres’ application
for a writ of habeas corpus. Torres has failed to allege facts
which, if proven, demonstrate that a constitutional violation
occurred in connection with his guilty plea, or that he is
probably innocent of “carrying” a firearm. Torres’ case
therefore is not one which, under Bousley v. United States, 118
S.Ct. 1604 (1998), a habeas petitioner, despite his failure to
challenge his guilty plea on direct appeal, may have remanded to
the district court for a determination of whether a
constitutional error in his plea colloquy probably resulted in
the conviction of one who is actually innocent.
In Bousley v. United States, 118 S.Ct. 1604 (1998), the
Supreme Court held that a habeas petitioner who did not challenge
his guilty plea on direct appeal, but who alleged that, when he
pleaded guilty in 1990 to “using” a firearm in violation of 18
U.S.C. § 924(c)(1), he was advised by the trial judge, by his own
lawyer, and by the prosecutor that mere possession of a firearm
would support a conviction of “use” of a firearm under §
924(c)(1), was entitled to an opportunity on remand to the
district court to establish that the constitutional error in his
plea colloquy “‘has probably resulted in the conviction of one
who is actually innocent.’” Id. at 1611, quoting Murray v.
11
Carrier, 477 U.S. 478, 496 (1986). Bousley apparently alleged or
pointed to facts which, if proven, demonstrated that he was
actually innocent of “using” a firearm, and that he was induced
to enter an unintelligent and therefore constitutionally invalid
plea to the offense by the legal advice he received, which was
critically incorrect in light of the holding in Bailey v. United
States, 516 U.S. 137, 144 (1995), that § 924(c)(1)’s “use” prong
requires the government to show “active employment of the
firearm.”
Bousley is apparently the first case in which the Supreme
Court has recognized the possibility of applying the actual-
innocence exception in a case in which a defendant has asked a
habeas court to adjudicate a successive or procedurally defaulted
constitutional claim after his guilty plea conviction. See
Bousley, 118 S.Ct. at 1615 (Scalia, J., dissenting)(“In every one
of our cases that has considered the possibility of applying this
so-called actual-innocence exception, a defendant had asked a
habeas court to adjudicate a successive or procedurally defaulted
constitutional claim after his conviction by a jury. [citing
authorities].”)
In doing so, the court adopted the standard of proof
governing a district court’s actual-innocence inquiry formulated
by its opinions commenting on the subject in jury conviction
cases. Id. at 1611. (“Petitioner’s claim may still be reviewed in
12
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 actually innocent.’ Murray v.
Carrier, 477 U.S., at 496 []. 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.’ Schlup v. Delo, 513 U.S. 298, 327-328
[] (quoting Friendly, Is Innocence Irrelevant? Collateral Attack
on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)).”)
The Bousley court, however, did not articulate clear
guidelines as to the pleadings or preliminary showing necessary
to trigger an actual-innocence inquiry in a guilty plea
conviction case. But it appears that the pleading requirements
are analogous to those that may be gleaned from the court’s
discussion of the actual-innocence exception in jury conviction
cases--to state a substantial actual-innocence claim, the habeas
petitioner must allege or point to facts which, if proven, would
demonstrate that a constitutional violation probably resulted in
the conviction of a person who is actually innocent. The general
rule announced in Carrier is that “in an extraordinary case,
where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas
court may grant the writ even in the absence of a showing of
cause for the procedural default.” 477 U.S. at 496; see also
13
Kuhlmann, 477 U.S. at 452 (expressing the same principle and
underlying reasons) and Smith v. Murray, 477 U.S. 527, 537
(1986). This rule rests in part on the fact that habeas corpus
petitions that advance a substantial claim of actual innocence
are extremely rare. Schlup v. Delo, 513 U.S. at 321. Thus the
claim of actual innocence must be one that is “extremely rare”
and “substantial.” The Kuhlmann plurality concluded that “the
‘ends of justice’ require federal courts to entertain [actual
innocence] petitions only where the prisoner supplements his
constitutional claim with a colorable showing of factual
innocence.” 477 U.S. at 454; and that the petitioner would be
required to establish by a “‘fair probability’” that “‘the trier
of the facts would have entertained a reasonable doubt of his
guilt.’” Id. “To be credible, such a claim requires petitioner
to support his allegations of constitutional error with new
reliable evidence--whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence--
that was not presented at trial.” Schlup v. Delo, 513 U.S. at
324.
In Bousley the Supreme Court indicated that the habeas
petitioner who would state a claim of actual-innocence of a
guilty plea conviction must plead or point to facts which, if
proven, show that his guilty plea was constitutionally invalid
and that he is probably innocent of that crime. The Bousley
court clearly suggested that, before a defendant may ask a habeas
14
court to apply the actual-innocence exception in adjudicating his
successive or procedurally defaulted constitutional claim after
his guilty plea conviction, the defendant must first allege facts
and/or point to facts referred to in the record which, if proven,
show that his guilty plea was not constitutionally valid. See
Bousley, 118 S.Ct. at 1609, in pertinent part, stating:
“[T]hat...prior to pleading guilty, he was provided
with a copy of his indictment, which charged him with
“using” a firearm . . ., standing alone, give[s] rise
to a presumption that the defendant was informed of the
nature of the charge against him. Henderson v. Morgan,
426 US 637, 647, 96 S.Ct. 2253, 2258-2259, [](1976);
id., at 650, 96 S.Ct., at 2260 (White, J., concurring).
Petitioner nonetheless maintains that his guilty plea
was unintelligent because the District Court
subsequently misinformed him as to the elements of a §
924(c)(1) offense. In other words, petitioner contends
that the record reveals that neither he, nor his
counsel, nor the court correctly understood the
essential elements of the crime with which he was
charged. Were this contention proven, petitioner’s
plea would be, contrary to the view expressed by the
Court of Appeals, constitutionally invalid. (Emphasis
added).
15
Bousley also implies that the petitioner must allege or point to
facts which, if proven, demonstrate that he is probably not
culpable of the crime to which he pleaded guilty. See Bousley,
118 S.Ct. at 1612. Although the Bousley majority did not
expressly so state, Bousley evidently had alleged or pointed to
facts in the record which if proven, demonstrated his probable
actual innocence of “using” a firearm which he, in fact, merely
possessed. Justice Stevens, concurring in part and dissenting in
part, stated that “in 1990 when petitioner was advised by the
trial judge, by his own lawyer, and by the prosecutor that mere
possession of a firearm would support a conviction under §
924(c), he received critically incorrect legal advice.” Id. at
1613. The majority opinion does not take issue with Justice
Stevens’ statement and the tenor of the dissenting opinion tends
to confirm his reading of the record. Id. at 1611-12, 1614-17.
In the present case, Torres has not alleged or pointed to
facts in the record which, if proven, would show that his guilty
plea was constitutionally invalid or that he probably was
actually innocent of “carrying” a firearm in violation of §
924(c). Consequently, I concur in upholding the District Court’s
dismissal of Torres’ habeas petition for this reason alone.
However, I do not think it is appropriate for this appellate
court to comment upon what the petitioner could or could not
prove on the merits of a hypothetical actual innocence inquiry.
16
When a petitioner alleges or refers to facts which, if proven,
support a substantial claim of probable actual innocence, it is
not within this court’s province to make the determination on the
merits of whether it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable
doubt. According to Bousley it is appropriate to remand such a
case to the district court to permit the petitioner to attempt to
make a showing of actual innocence. Id. at 1611. “If on remand,
the petitioner can make that showing, he will then be entitled to
have his defaulted claim of an unintelligent plea considered on
its merits.” Id. at 1612.
The Supreme Court’s prior opinions discussing the actual-
innocence exception also indicate that even in a case that has
been fully tried and the defendant has been convicted by a jury,
the appellate court should not make the actual-innocence or
constitutional violation determination on the merits itself, but
should remand the case to the trial court for that purpose. The
habeas court must make its determination concerning the
petitioner’s innocence, as Judge Friendly described, “‘in the
light of all the evidence, including that alleged to have been
illegally admitted (but with due regard to any unreliability of
it) and evidence tenably claimed to have been wrongly excluded or
to have become available only after the trial.’” Schlup v. Delo,
513 U.S. at 328, quoting Friendly, Is Innocence Irrelevant?
17
Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev 142, 160
(1970). Such a determination usually will call for the taking of
additional evidence from the petitioner and the government and
require the District Court to assess the probative force of the
newly presented evidence, and how the timing of the submission
and the likely credibility of the affiants bear on the probable
reliability of the evidence. Schlup v. Delo, 513 U.S. at 331-32.
On the other hand, if the petitioner, as in the present case, has
failed to state a substantial claim of actual innocence that a
federal court is required to entertain, the systemic interests in
finality, comity, and conservation of judicial resources requires
that the district court’s dismissal of the habeas petition be
affirmed solely for that reason.
Other than my disagreement with the majority’s apparent
decision to deal with the merits of the actual innocence issue
rather than dismiss the petition for a failure to state a
substantial claim thereof, I concur in the majority opinion.
18