Arnold F. Hohn v. United States of America,appellee
Docket: 96-3118
Court: Court of Appeals for the Eighth Circuit; October 5, 1999; Federal Appellate Court
Arnold F. Hohn appealed the denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, following his conviction by a federal jury on drug-related charges, including using a firearm during a drug trafficking crime (18 U.S.C. § 924(c)(1)). Initially, Hohn's appeal was denied a certificate of appealability, but the Supreme Court vacated that decision and remanded the case for further consideration of his claim of "gateway" factual innocence, referencing Schlup v. Delo.
Hohn had been sentenced to 90 months in prison in July 1992, and while his direct appeal affirmed his convictions, it did not challenge the § 924(c)(1) conviction or related jury instructions. At the time, the Eighth Circuit broadly interpreted "use" to include mere availability of a firearm. However, in 1995, the Supreme Court clarified that "use" necessitates "active employment" of the firearm, as established in Bailey v. United States, which Hohn argued was not present in his case.
Hohn's motion under § 2255 was denied by the district court, which ruled he had waived his claim regarding the Bailey decision by not raising it on direct appeal. Although initially deemed a statutory claim without constitutional basis, the Supreme Court later acknowledged it as constitutional, leading to this remand. Hohn contended that the district court's dismissal of his claim as waived was in error, recognizing that his failure to raise the Bailey issue amounted to procedural default.
A procedural default may be excused if a defendant shows either cause and actual prejudice or actual innocence. Hohn claims his procedural default should be excused due to actual innocence regarding the section 924(c) offense. To establish actual innocence, a petitioner must prove that it is more likely than not that no reasonable juror would have convicted him. The district court denied Hohn's motion based on waiver without considering actual innocence. Hohn argues there was no evidence he "used" a firearm as required by Supreme Court precedent, which necessitates demonstrating "active employment" of the firearm. Hohn asserts he is also innocent of the "carry" aspect of the offense, which involves either bearing the firearm on one's person or conveying it in a vehicle. The government claims sufficient evidence exists to sustain the conviction, citing that Hohn was arrested near firearms and methamphetamine, although he was not carrying a firearm at the time of arrest. Hohn contends the inference that he carried the firearms is unreasonable due to the presence of others in his home and lack of fingerprint evidence. The determination of Hohn's innocence requires a review of the entire record to assess reasonable inferences based on the presented evidence. The district court dismissed the case without considering the implications of recent Supreme Court rulings, leading to a remand for the district court to conduct a fact-based analysis of Hohn's claim of factual innocence regarding the "carry" prong of the offense. The appellate court reversed the dismissal of Hohn's section 2255 motion, allowing for further proceedings. Additionally, the court declined to address Hohn's assertion of cause and prejudice for his default, as it was raised for the first time in his reply brief.
