523 U.S. 614, 618-619, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)
Following his arrest in March 1990, petitioner was charged with possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).1 A superseding indictment added the charge that he knowingly and intentionally used firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).2 Petitioner agreed to plead guilty to both charges while reserving the right to challenge the quantity of drugs used in calculating his sentence.3
The District Court accepted petitioner’s pleas, finding that he was competent to enter them, that they were voluntarily entered, and that there was a factual basis for them.4 Following a sentencing hearing, the District Court sentenced petitioner to 78 months’ imprisonment on the drug count, a consecutive term of 60 months’ imprisonment on the § 924(c) count, and four years of supervised release.5 Petitioner appealed his sentence but did not challenge the validity of his plea.6 The Court of Appeals affirmed.7
In June 1994, petitioner sought a writ of habeas corpus under 28 U.S.C. § 2241 challenging the factual basis for his guilty plea.8 The petition was treated as a motion under 28 U.S.C. § 2255.9 A Magistrate Judge recommended dismissal, concluding that there was a factual basis for petitioner’s guilty plea because the guns in petitioner’s bedroom were in close proximity to drugs and were readily accessible.10 The District Court adopted the recommendation.11
While petitioner’s appeal from the dismissal was pending, the Supreme Court decided Bailey v. United States.12 The Court of Appeals appointed counsel who argued that Bailey should be applied retroactively and that the guilty plea was involuntary, but the court affirmed the order of dismissal.13 The Supreme Court granted certiorari.14
Whether a claim that a guilty plea was not knowing and intelligent because the defendant was misinformed about the elements of the charged offense is governed by the Teague doctrine on collateral review?15
The Teague doctrine applies only to new rules of criminal procedure and does not govern claims based on the substantive interpretation of a federal criminal statute.16
No. The only constitutional claim made here is that petitioner’s guilty plea was not knowing and intelligent.1718 There is surely nothing new about this principle.19 Because Teague by its terms applies only to procedural rules, it is inapplicable to the situation in which this Court decides the meaning of a criminal statute enacted by Congress.20
This distinction between substance and procedure is an important one in the habeas context.21 Decisions of this Court holding that a substantive federal criminal statute does not reach conduct that does not violate the statute necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal.
Applying the rule to these facts, the claim is not Teague-barred.22
The Teague doctrine does not bar petitioner's claim.23
Related opinions on this issue
While I agree with the Court’s central holding and with its conclusion that none of its judge-made rules foreclose petitioner’s collateral attack on his conviction under 18 U. S. C. § 924(c), I believe there is a flaw in its analysis that will affect the proceedings on remand.24
Our decision in Bailey v. United States did not change the law.25 It merely explained what § 924(c) had meant ever since the statute was enacted.26 The fact that several Courts of Appeals had construed the statute differently is of no greater legal significance than the fact that 42 U. S. C. § 1981 had been consistently misconstrued prior to our decision in Patterson v. McLean Credit Union.27
Thus 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.28 The fact that all of his advisers acted in good-faith reliance on existing precedent does not mitigate the impact of that erroneous advice.29 Its consequences for petitioner were just as severe, and just as unfair, as if the court and counsel had knowingly conspired to deceive him in order to induce him to plead guilty to a crime that he did not commit.30
Whether a defendant who challenged only his sentence on direct appeal has procedurally defaulted a later claim that his guilty plea was invalid?31
Even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.32
Yes. It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.33 Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.34 In this case, petitioner contested his sentence on appeal, but did not challenge the validity of his plea.35
In failing to do so, petitioner procedurally defaulted the claim he now presses on us.36 The concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.37
The claim is procedurally defaulted.38
Whether a defendant can overcome procedural default of a guilty-plea claim by demonstrating actual innocence?39
Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.40
Yes. Petitioner offers two explanations for his default in an attempt to demonstrate cause.41 First, he argues that the legal basis for his claim was not reasonably available to counsel at the time his plea was entered.42 This argument is without merit because the argument that it was error for the District Court to misinform petitioner as to the statutory elements of § 924(c)(1) was most surely not a novel one.43
Petitioner also contends that his default should be excused because before Bailey any attempt to attack his guilty plea would have been futile.44 This argument is unavailing because futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.45 Therefore, petitioner is unable to establish cause for his default.46
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 actually innocent.47 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.48
Actual innocence may overcome the procedural default.49
Related opinions on this issue
I agree with the Court that petitioner has not demonstrated cause for failing to challenge the validity of his guilty plea on direct review.50 I disagree, however, that a defendant who has pleaded guilty can be given the opportunity to avoid the consequences of his inexcusable procedural default by having the courts inquire into whether it is more likely than not that no reasonable juror would have convicted him of the offense to which he pleaded guilty.51
There are good reasons for limiting the actual innocence exception to cases that have actually gone to trial.52 First and foremost, it is feasible to make an accurate assessment of actual innocence when a trial has been had.53 In Schlup, for example, we said that to sustain an actual innocence claim the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.54 That new evidence was to be evaluated, of course, along with the old evidence, consisting of the transcript of the trial.55
But how is the court to determine actual innocence upon our remand in the present case, where conviction was based upon an admission of guilt?56 Presumably the defendant will introduce evidence showing that he did not use a firearm in committing the crime to which he pleaded guilty, and the Government, eight years after the fact, will have to find and produce witnesses saying that he did.57 This seems to me not to remedy a miscarriage of justice, but to produce one.58
Whether a showing of actual innocence requires the defendant to prove he is innocent of uncharged conduct that the government forwent during plea negotiations?59
In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.60
No. It is important to note that actual innocence means factual innocence, not mere legal insufficiency.6162 In other words, the Government is not limited to the existing record to rebut any showing that petitioner might make.63 Rather, on remand, the Government should be permitted to present any admissible evidence of petitioner’s guilt even if that evidence was not presented during petitioner’s plea colloquy and would not normally have been offered before our decision in Bailey.64
The Government maintains that petitioner must demonstrate that he is actually innocent of both using and carrying a firearm in violation of § 924(c)(1).65 But petitioner’s indictment charged him only with using firearms in violation of § 924(c).66 There is no record evidence that the Government elected not to charge petitioner with carrying a firearm in exchange for his plea of guilty.67 Accordingly, petitioner need demonstrate no more than that he did not use a firearm as that term is defined in Bailey.68 If, on remand, petitioner can make that showing, he will then be entitled to have his defaulted claim of an unintelligent plea considered on its merits.69
Petitioner need only show he is actually innocent of using a firearm.70
Related opinions on this issue
Given the fact that the record now establishes that the plea of guilty to the § 924(c) charge was constitutionally invalid, petitioner remains presumptively innocent of that offense.71 Accordingly, unless he again pleads guilty, the burden is on the Government to prove his unlawful use of a firearm.72
Because the record in this case already unambiguously demonstrates that petitioner’s plea to the § 924(c) charge is invalid as a matter of constitutional law, I would remand with directions to vacate his § 924(c) conviction and allow him to plead anew.73