[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
August 26, 2004
No. 03-11950 THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 98-00018-CR-WCO-2-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO MONTANO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 26, 2004)
Before BARKETT and HILL, Circuit Judges, and FORRESTER*, District Judge.
*
Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation
FORRESTER, District Judge:
Francisco Montano appeals the district court’s denial of his motion seeking
leave to file an untimely 28 U.S.C. § 2255 motion to vacate, set aside, or correct
his sentence under 18 U.S.C. § 924(c), which prohibits use of a firearm during or
in relation to a felony drug trafficking transaction. Pursuant to a negotiated plea
agreement, Montano pled guilty on July 24, 1998 and was sentenced on October 6,
1998, on two counts: the above-mentioned § 924(c) charge, as well as possession
with intent to distribute methamphetamine under 21 U.S.C. § 841(a)(1). Montano
did not file a direct appeal. Montano subsequently filed his motion for permission
to file an untimely § 2255 motion, alleging inter alia actual innocence of the
§ 924(c) firearm conviction.1 The district court denied Montano’s motion, finding
that he was not actually innocent of the § 924(c) charge and thus declining to
answer whether actual innocence is sufficient grounds to waive the period of
limitations for filing of a § 2255 motion. Granting Montano’s certificate of
appealability, the district court certified two related questions for our review.
First, does bartering drugs for guns constitute “use” of a firearm within the
meaning of § 924(c)? If not, does actual innocence excuse Montano’s failure to
1
Montano formally claimed a Fifth Amendment due process violation in his motion for
leave to file his untimely § 2255 motion. Within this pleading, however, Montano clearly asserts
his actual innocence of the § 924(c) conviction.
2
bring his § 2255 motion within the one-year statutory period under 28 U.S.C.
§ 2244(d) for filing a motion to vacate a sentence?
On April 13, 1998, state and federal law enforcement officers directed a
confidential informant to meet with Montano in a grocery store parking lot in
Gainesville, Georgia. Inspector Bennett of the Hall County Sheriff’s Office
accompanied the confidential informant to this meeting. After introducing
Inspector Bennett to Montano, the confidential informant left the scene. Montano
told Inspector Bennett he wished to obtain .38 caliber revolvers, 9 mm pistols, and
.380 caliber pistols. Further, Montano informed Inspector Bennett he wished to
exchange methamphetamine for the guns. Inspector Bennett agreed to the
methamphetamine-for-guns deal and stated he would inform Montano when the
guns were available.
On April 23, 1998, Inspector Bennett met Montano in the same Gainesville,
Georgia parking lot and allowed Montano to inspect eleven firearms. Inspector
Bennett advised Montano that he wanted one-quarter pound of methamphetamine,
and would pay for the difference between gun value and drug value with cash.
Montano then informed Inspector Bennett he would exchange the one-quarter
pound of methamphetamine for the eleven guns and $1650.00 in cash. After
striking this deal, Montano left to obtain the methamphetamine, and Inspector
3
Bennett went to arrange for the additional cash. Approximately one hour later, the
two men met actually to complete the transaction. Once Montano produced the
quarter-pound of methamphetamine, he was immediately arrested. Montano never
took possession of the firearms. A search of his vehicle revealed additional
supplies of methamphetamine. Montano was arrested with approximately 117.2
grams of methamphetamine in his possession, the quarter-pound (110 grams)
involved in the drugs-for-guns transaction, as well as 7.2 additional grams of
methamphetamine found in his car. Montano’s presentence report also reveals
that he was involved in a 111.1 gram cocaine transaction on October 20, 1997, a
25.9 gram methamphetamine transaction on January 28, 1998, and the sale of a
firearm on March 31, 1998.
Montano was indicted on May 28, 1998 on five counts:2 conspiring to
possess methamphetamine and cocaine hydrochloride with intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and 846; knowingly and intentionally
possessing cocaine hydrochloride on or about October 20, 1997 with intent to
distribute in violation of 21 U.S.C. § 841(a)(1); two counts of knowingly and
intentionally possessing methamphetamine on or about January 28, 1998 and
2
Montano was indicted along with three co-defendants: Ignacio Chavez Mendez (a/k/a
“Nacho”), Juan Roberto San Miguel, and Vicente Aguilar-Lopez. Out of the eight counts in the
indictment, only five spoke to Montano’s own culpable conduct.
4
April 23, 1998 with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and
using and carrying a firearm during and in relation to a drug trafficking crime–the
April 23, 1998 possession of methamphetamine–in violation of 18 U.S.C.
§ 924(c). On July 24, 1998, Montano entered into a plea agreement in which he
pled guilty to counts seven and eight of the indictment: possession of
methamphetamine with intent to distribute on or about April 23, 1998, and use of a
firearm during and in relation to that drug trafficking crime. As part of this plea
agreement, Montano waived his rights under 18 U.S.C. § 3742 to appeal his
sentence3 and agreed to cooperate with the government. The government
subsequently dismissed the remaining three counts of the indictment pending
against Montano. At his October 6, 1998 sentencing, Montano received 45
months’ imprisonment on each of the two counts to which he pled guilty, these
two sentences to run consecutively. Montano’s total sentence was reduced by the
district court’s granting of the government’s motion to reduce sentence pursuant to
U.S.S.G. § 5K1.1 for substantial cooperation. Montano was also assessed five
years’ supervised release on the drug count and three years’ supervised release on
the gun count, these terms to run concurrently, and a $2,000 fine.
3
Montano did retain the right to appeal an incorrect application of the Sentencing
Guidelines, any upward departures not agreed to in the plea agreement, and any incorrect finding
of fact.
5
Montano’s appeal presents us with a procedural question: Can Montano
bring his § 2255 motion to set aside his § 924(c) conviction and sentence more
than one year after that conviction became final, or is that motion now
procedurally barred? As Montano recognized in his motion to the district court,
28 U.S.C. § 2244(d)(1) places a one-year period of limitations on the filing of
motions to vacate sentence under § 2255. The statute provides:
A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of a
State court. The limitation period shall run from the latest of–
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1). The parties do not dispute that Montano’s § 2255 motion
was filed more than one year after the date upon which the judgment became
final.4 Generally, if a challenge to a conviction or sentence is not made on direct
4
Further, Montano has presented no evidence that the other subparts of § 2244(d)(1) apply
to the facts of his case.
6
appeal, it will be procedurally barred in a § 2255 challenge. Mills v. United States,
36 F.3d 1052, 1055 (11th Cir. 1994). A defendant cannot overcome this
procedural bar unless he can demonstrate a cause for this default and show actual
prejudice suffered as a result of the alleged error. Id. In the alternative, a
defendant can also overcome the procedural bar created by the failure to appeal if
he could show a fundamental miscarriage of justice; “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.” Id. (quoting Murray v. Carrier,
477 U.S. 478, 496 (1986)). Montano contends that he is actually innocent of the
§ 924(c) conviction and contends this actual innocence provides an exception to
the one-year filing requirement under § 2244(d)(1)(A).5 In order to determine
whether Montano can surmount the procedural bar to the filing of his § 2255
petition, then, we must first examine the merits of Montano’s underlying claim to
5
Montano also claims that this filing requirement should be equitably tolled due to his
difficulties with the English language. Montano claims that his attorney was either ignorant or
ineffective in failing to challenge the § 924(c) conviction, and that his language difficulties
prohibited him from timely discovering this challenge on his own. We find, however, that
Montano has not shown such “extraordinary circumstances” as to justify equitable tolling of the
one-year filing requirement in § 2244(d)(1). Akins v. United States, 204 F.3d 1086, 1089 (11th
Cir. 2000) (quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999)); see also
Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (finding that attorney negligence or mistake
does not justify equitable tolling); Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (holding
that inability to read and speak English is not in itself a sufficient basis for equitably tolling a
failure to meet § 2244(d)(1) requirements).
7
determine if he is actually innocent of the crime to which he pled guilty: use of a
firearm during a drug transaction in violation of § 924(c).
I. “Use” of a Firearm
In Smith v. United States, 508 U.S. 223, 241 (1993), aff’g 957 F.2d 835
(11th Cir. 1992), the Supreme Court affirmed our holding that bartering guns to
obtain drugs was “use” of a firearm within the meaning of 18 U.S.C. § 924(c).6 In
Smith, the petitioner traveled to Florida hoping to buy cocaine to resell for a profit.
Id. at 225. While in Florida, Smith met with an undercover officer and offered to
trade his automatic MAC-10 firearm for two ounces of cocaine. Id. at 225-26.
The undercover officer agreed to the deal and left to obtain the cocaine. Id. at 226.
6
Section 924, as it appeared at the time of Montano’s 1998 conviction and sentence,
provides in pertinent part:
Except to the extent that a greater minimum sentence is otherwise provided by
this subsection or by any other provision of law, any person who, during and in
relation to any crime of violence or drug trafficking crime (including a crime of
violence or drug trafficking crime that provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United States, uses or carries a firearm,
or who, in furtherance of any such crime, possesses a firearm, shall, in addition to
the punishment provided for such crime of violence or drug trafficking crime–
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less
than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not
less than 10 years.
18 U.S.C. § 924(c) (Supp. 1999). At the time of the Smith decision, the statute’s terms differed
slightly; however, any discrepancies between the versions of § 924(c) are immaterial to the
analysis at hand.
8
Smith did not wait for the officer’s return, but rather drove off. Id. After a high-
speed chase, Smith was arrested with the MAC-10 and a quantity of other
weapons. Id. Smith was charged with a violation of § 924(c) but argued that
“use” of a firearm meant use as a weapon. Id. at 227. As Smith only bartered with
the weapon, he contended that the statute’s prohibitions on “use” of a firearm did
not extend to his actions. See id. In order to determine whether bartering with a
firearm constituted a violation of the statute, the Supreme Court looked to the
meaning of “use,” defined in various dictionaries as “to convert to one’s service,”
“to employ,” “make use of,” or “to carry out a purpose or action by means of.” Id.
at 228-29 (citing Webster’s New International Dictionary 2806 (2d ed. 1939) and
Black’s Law Dictionary 1541 (6th ed. 1990)). Using these resources, the Court
concluded that in trading a gun for drugs, Smith had clearly derived service from
the gun, as it was through utilizing the firearm as an item of barter that Smith was
able to secure the drugs he sought. Id. Smith, then, holds that bartering guns for
drugs is “use” of a gun in relation to a drug trafficking offense and a violation of
the statute.
The meaning and extent of “use” in § 924(c) was further explored in Bailey
v. United States, 516 U.S. 137 (1995). In Bailey, the court examined whether mere
possession of a firearm during a drug transaction was sufficient to constitute “use”
9
of a firearm under § 924(c), or if something more was required. Id. at 138-39.
The Bailey petitioners had guns nearby during drug transactions, but these guns
were not fired, brandished, displayed or otherwise actively made part of the drug
trafficking transaction. Id. at 139-40, 151. The Court determined that mere
possession of a firearm during or in relation to a drug transaction was not
sufficient to constitute “use” under § 924(c), observing that such a definition
would “criminalize ‘simple possession with a floating intent to use.’” Id. at 144
(quoting United States v. Bailey, 36 F.3d 106, 121 (D.C. Cir. 1994) (en banc)
(Williams, J., dissenting)). Instead, the Court held that conviction under § 924(c)
required a showing that the firearm was actively employed in relation to the drug
trafficking offense. Id. The Bailey opinion was careful to harmonize its holding
with Smith, however, stating, “[u]nder the interpretation we enunciate today, a
firearm can be used without being carried, e.g., when an offender has a gun on
display during a transaction, or barters with a firearm without handling it.” Id. at
146 (emphasis added).
Although [in Smith] we declined to limit “use” to the meaning “use as
a weapon,” our interpretation of § 924(c)(1) nonetheless adhered to
an active meaning of the term. In Smith, it was clear that the
defendant had “used” the gun; the question was whether that
particular use (bartering) came within the meaning of § 924(c)(1).
Smith did not address the question we face today of what evidence is
required to permit a jury to find that a firearm had been used at all.
10
Id. at 148. Thus, Bailey did not overrule Smith’s holding that a guns-for-drugs
barter could constitute “use” of a firearm within the meaning of § 924(c); it simply
reaffirmed that bartering with a gun to obtain drugs was the kind of active
employment of a firearm required by the terms of the statute.
While Smith and Bailey clarified that the bartering of guns to obtain drugs
constituted “use” under § 924(c), the cases do not speak to the converse scenario
presented to us by the facts of this case of bartering drugs to obtain guns. While
we have not yet considered this precise question, several of our sister circuits have
been divided by this issue. In United States v. Sumler, 294 F.3d 579, 583 (3d Cir.
2002), the Court of Appeals for the Third Circuit upheld a § 924(c) conviction for
bartering drugs for guns, stating that the Smith and Bailey decisions defining “use”
to include “barter” foreclosed any other resolution. Beyond Smith and Bailey’s
equation of use and bartering, the Sumler opinion also cited the specific facts of
the case as strong motivation for adopting the majority opinion. The Sumler
defendant actively solicited the drugs-for-guns swap. Id. Moreover, the drugs-
for-guns transaction was conducted by two private individuals, and thus no
whisper of government influence or entrapment colored the transaction. Id. For
all these reasons, the Third Circuit felt that the defendant’s request for the guns
constituted “use” of a firearm in relation to a drug trafficking crime. Id. Similarly,
11
in United States v. Cannon, 88 F.3d 1495, 1500 (8th Cir. 1996), the defendants
traded drugs for guns and cash. The Court of Appeals for the Eighth Circuit
upheld the § 924(c) convictions, finding that any differences between trading guns
for drugs and trading drugs for guns to be “a distinction without a difference” as
“‘use’ certainly includes . . . bartering.” Id. at 1509 (quoting Bailey, 516 U.S. at
148). The Court of Appeals for the Fifth Circuit also reached the same conclusion
as the Eighth and Third Circuits in United States v. Ulloa, 94 F.3d 949 (5th Cir.
1996), holding that the firearms were actively employed “because they were an
‘operative factor’ in the drug trafficking offenses: [the defendant] required that he
be furnished firearms in exchange for his drugs.” Id. at 956; see also United
States v. Zuniga, 18 F.3d 1254, 1259 (5th Cir. 1994) (Fifth Circuit opinion
predating Bailey, holding that trading drugs for guns constituted use of a firearm
in relation to a drug trafficking crime).7
Ranged against this line of cases is a set of opinions which has found that
bartering drugs for guns does not violate § 924(c). United States v. Westmoreland,
122 F.3d 431 (7th Cir. 1997), presented the earliest exposition of this position. In
7
The Second and Ninth Circuit Courts of Appeal also noted this question. See United
States v. Cox, 324 F.3d 77, 83-84 (2d Cir. 2003) (declining to answer the issue and resolving on
the grounds that the gun was used as collateral and not in barter); United States v. Ramirez-
Rangel, 103 F.3d 1501, 1506 (9th Cir. 1997) (mentioning that bartering drugs for guns is “use” in
context of discussing sentence entrapment).
12
Westmoreland, the Court of Appeals for the Seventh Circuit concluded that
“passively receiving a gun from an undercover agent in payment for drugs cannot
constitute a use under section 924(c)(1).” Id. at 435. Like the Supreme Court in
Smith and Bailey, the Seventh Circuit focused upon the meaning of “use” to reach
this conclusion. Id. at 435-36. The Westmoreland court likened a bartering
transaction to the cash purchase of that gun. Id. Conventional understanding of
the meaning of “use” would embrace the notion that the gun buyer “used” his
money to purchase the firearm. See id. The active definitions of “use” expounded
in Smith and Bailey, however, do not stretch to the converse situation. A seller
does not use a buyer’s consideration; instead, the act of receiving the buyer’s
consideration is inherently passive. Id. at 436. Utilizing the same logic, the court
concluded that while the defendant may well have used his drugs in order to
obtain the gun, he could not be said to have used the gun in that transaction. Id.
As the defendant was immediately arrested upon receipt of that gun, the Seventh
Circuit found that the gun was never anything more than an “inert presence” to the
transaction and reversed the § 924(c) conviction. Id.
The Sixth Circuit also reached the conclusion that passive receipt of a
firearm in a drugs-for-guns transaction did not constitute a violation of § 924(c) in
United States v. Warwick, 167 F.3d 965 (6th Cir. 1999). In Warwick, a defendant
13
sought to sell marijuana for a specific sum of money to an undercover officer. Id.
at 975. That officer advised the defendant that he did not have the full amount of
money on him, but suggested that he give the defendant a shotgun to make up for
the shortfall in cash. Id. The court noted that the particular facts of the case
suggested that the government and not the defendant introduced the firearm into
the transaction. Id. at 976. Focusing on the passive nature of the defendant’s
interaction with the firearm, the Sixth Circuit employed the ordinary meaning of
“use” as defined in Bailey and Smith and concluded that receipt of a firearm in a
drug transaction did not constitute a violation of § 924(c). Id. at 975-76.
Most recently, the Court of Appeals for the District of Columbia has
weighed in on this debate in United States v. Stewart, 246 F.3d 728, 733 (D.C. Cir.
2001), also concluding that bartering drugs for guns does not constitute use of a
firearm under § 924(c). In Stewart, the defendants asked two undercover officers
if they could obtain two guns for $500. Id. at 729. The officers and defendants
eventually agreed to exchange 250 grams of crack for $7,000 and a bag of guns.
Id. The defendants were arrested immediately after receipt of the guns. Id. The
Stewart court, too, turned to the definition of “use” set forth in Smith and Bailey
and stated,
[W]e cannot see how a defendant “uses” a gun when he
receives it during a drug transaction. The recipient has not employed
14
the gun, availed himself of the gun, or derived any service from the
gun by simply trading his drugs for it. Indeed, nothing in a person’s
acceptance of a gun embodies the active employment demanded by
the Court in Bailey. We therefore agree . . . that a person who
receives a gun in a trade for drugs has not used the gun in violation of
§ 924(c).
Id. at 731 (internal citations omitted). Moreover, the Stewart opinion dispensed
with the entrapment or inducement issue raised in Warwick, stating that the issue
of who first suggested bartering drugs for guns was irrelevant to the legal
question; “[u]nder either scenario, the drug dealer has not used the gun within the
meaning of § 924(c).” Id. at 732.
We find the minority position persuasive. While we recognize that the
Bailey and Smith Courts did interpret bartering to be an active employment of a
firearm within § 924(c), this language must be read in its proper context. Smith
did not hold that bartering, in general, constituted “use” of a firearm; instead, the
opinion states that bartering with a firearm constitutes use. See 508 U.S. at 237,
241. Given that bartering with a firearm constitutes an employment of that gun by
the defendant to achieve his own purposes, it is unsurprising that Bailey was able
to fold the particular facts of Smith within its “active employment” definition of
use. In the instant case, however, the defendant did not bargain with his firearm,
he bartered drugs in order to obtain that firearm. The facts of Montano’s case,
15
then, may be distinguished from the holdings of Smith and Bailey, and those cases
do not foreclose Montano’s present claim of actual innocence.
Furthermore, the facts show that Montano was never in a position to use, or
actively employ, the eleven firearms for which he traded methamphetamine. The
firearms were never in Montano’s possession, either actually or constructively.
Montano was allowed to look at the firearms before agreeing to the transaction,
but he did not keep the firearms at that time; indeed, as Montano had not tendered
his consideration, the guns were still in the possession of the government. After
passively viewing the guns, Montano left the firearms in the control of Inspector
Bennett so that Montano could obtain the methamphetamine and complete the
deal. Upon his return, Montano again never had contact with any of the firearms,
as he was arrested immediately after producing the methamphetamine.
Moreover, as in Stewart, the record does not show that Montano employed
the guns, availed himself of the guns, derived service from the guns, or received
any other benefit from the guns that could be considered “active employment.” In
other words, Montano had nothing resembling dominion or control over the
firearms present at the drug transaction, and thus no means to “convert to one’s
service,” “to employ,” “make use of,” or “to carry out a purpose or action by
means of” the guns. Smith, 508 U.S. at 229; cf. United States v. Leonard, 138 F.3d
16
906, 909 (11th Cir. 1998) (finding a defendant did not have dominion or control
over drugs or gun found in a car when he did not own the car, was not driving the
car, and was simply a passenger riding in the back seat). In these factual
circumstances, the only means by which Montano could have “used” the gun, as
contemplated by the statute, would be to make the government agents present at
the final transaction somehow comply with his wishes; however, it is impossible,
of course, for Montano to conspire with the government. United States v. Lively,
803 F.2d 1124, 1126 (11th Cir. 1986) (citing United States v. Richardson, 764
F.2d 1514, 1529 (11th Cir. 1985)). Accordingly, this court must conclude that
Montano was not “using” a gun within the meaning of § 924(c).
II. Procedural Obstacles
While we have concluded that Montano did not violate § 924(c) by trading
methamphetamine for firearms, that determination does not bring an end to the
inquiry into his ability to file a procedurally-defaulted § 2255 motion. Actual
innocence is not itself a substantive claim, but rather serves only to lift the
procedural bar caused by Appellant’s failure timely to file his § 2255 motion.
Bousley v. United States, 523 U.S. 614, 622. In Jones v. United States, 153 F.3d
1305 (11th Cir. 1998), we considered what “actual innocence” meant in such a
17
context. In Jones, the defendant had pled guilty to possession of cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1), and using and carrying a
firearm in relation to a drug felony in violation of 18 U.S.C. § 924(c). Id. at 1306.
Like Montano, the Jones defendant alleged that his conviction under § 924(c)
should have been set aside because the evidence did not support his guilty plea in
light of Bailey. Id. at 1307. As he had not filed direct appeal of his sentence, the
Jones defendant was required to show either cause and prejudice or actual
innocence to avoid the procedural default caused by the failure to appeal. Id. We
held that cause and prejudice was not available to the Jones defendant as a means
of avoiding procedural default but recognized that actual innocence might still be
a viable option, and we remanded the case to the district court for further
consideration. Id. at 1308.
We noted in Jones, however, that simply showing factual innocence of the
§ 924(c) claim was not enough to demonstrate actual innocence. Id.
Moreover, in assessing Appellant’s claim of actual innocence, the
district court should heed the Supreme Court’s instruction that “[i]n
cases where the Government has foregone more serious charges in the
course of plea bargaining, petitioner’s showing of actual innocence
must also extend to those charges.”
Id. ( quoting Bousley v. United States, 523 U.S. at 624). Only if Appellant can
meet the requirements for proving his actual innocence will he “then be entitled to
18
have his defaulted claim of an unintelligent plea considered on its merits.”
Bousley, 523 U.S. at 624. Accordingly, simply determining that Montano did not
“use” the firearms purchased in the drugs-for-guns transaction does not establish
Montano’s actual innocence of the crime.8
We follow the same procedure here as was outlined in Jones. As Appellant
has pled guilty to the firearms charge, he is seen as contending that the plea was
not knowingly tendered, as was the case in Bousley v. United States. At this stage,
we do not have the plea colloquy or any other evidence concerning what the
Appellant knew about the possibility that § 924(c) would be construed as we have
done. We assume at this stage that the plea was unknowing unless the contrary be
shown on remand.
This is a case where the Government has foregone several more serious
charges in the course of plea bargaining. In pleading guilty to possession with
intent to distribute methamphetamine as well as the firearm charge, Montano
avoided trial on three other counts of the indictment: conspiring to possess
8
We recognize that the procedural default at issue in Jones, failure directly to appeal, is
different than the statute of limitations default faced by Montano. However, cases considering
whether “actual innocence” excuses untimely filing of a § 2255 motion have used the same Jones
definition of “actual innocence,” taken from Bousley v. United States, 523 U.S. 614, 623-24
(1998). See Wyzykowski v. Dep’t of Corrections, 226 F.3d 1213, 1219 & n.7 (11th Cir. 2000);
Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000). Accordingly, we
find that the standards set forth in Jones are appropriate in the instant case.
19
methamphetamine and cocaine hydrochloride with intent to distribute in violation
of 21 U.S.C. §§ 841(a)(1) and 846; knowingly and intentionally possessing
cocaine hydrochloride on or about October 20, 1997 with intent to distribute in
violation of 21 U.S.C. § 841(a)(1); and knowingly and intentionally possessing
methamphetamine, on or about January 28, 1998, in violation of 21 U.S.C.
§ 841(a)(1). As already discussed, in order to avail himself of a claim of actual
innocence, Appellant must demonstrate under Bousley and Jones that he is
innocent of all more serious charges foregone. As we said in Jones, the Appellant
bears the burden of establishing that, in light of all the evidence available to
support the foregone charges, it is more likely than not that no reasonable juror
would have convicted him. Bousley, 523 U.S. at 623. Moreover, the Government
must be permitted to introduce any admissible evidence of Appellant’s guilt,
whether or not that evidence was presented in the plea colloquy, or even would
have been offered before our decision today. See id.
For all the reasons set forth above, this case is REVERSED and
REMANDED to the district court for further proceedings in accordance with this
opinion.
20