Court: Court of Appeals for the Eighth Circuit; February 13, 2001; Federal Appellate Court
Mustafa Abdullah appealed the denial of his motion under 28 U.S.C. § 2255 to vacate his sentence, claiming his guilty plea was involuntary and unintelligent. Abdullah was arrested on July 17, 1989, during a search that uncovered 745 grams of cocaine and a loaded .44 caliber revolver. He was charged with multiple offenses, initially pleaded not guilty, but later pleaded guilty to conspiracy to distribute cocaine and using a firearm in relation to drug trafficking, with the government dismissing remaining charges. Abdullah sought to withdraw his guilty plea before sentencing, which the district court denied, sentencing him to 365 months for conspiracy and 60 months consecutively for the firearm charge. His appeal of the sentence, citing confusion over the firearm charge, was affirmed by the Eighth Circuit in 1991.
In May 1993, Abdullah filed a pro se § 2255 motion, alleging ineffective assistance of counsel and claiming his guilty plea was unknowing and involuntary due to inaccurate advice. The district court denied the motion in September 1996 without a hearing. Abdullah's subsequent attempts to appeal were complicated by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), but in August 1999, after a relevant case ruling, his appeal was reinstated. Abdullah's argument for vacating his conviction relied on Supreme Court cases interpreting the requirements for firearm use under 18 U.S.C. § 924(c), asserting that his guilty plea did not meet the necessary standards of being knowing and voluntary.
A conviction prior to the Bailey ruling can be deemed constitutionally defective if the defendant was misinformed about the elements of 924(c)(1), as established in Bousley. The government acknowledges that Abdullah's 924(c) conviction is invalid post-Bailey and Bousley but contends that Abdullah's claim cannot be reviewed because he did not raise it on direct appeal or during the 2255 proceedings. The government also asserts the claim is barred by the one-year limitations period set by AEDPA. The court assumes Abdullah did not procedurally default his claim but ultimately finds it barred because he failed to sufficiently present the issue in his 2255 petition. Generally, a habeas claim not raised in the district court is considered procedurally defaulted. Abdullah's 2255 petition, filed in 1993, claimed his guilty plea was involuntary due to misleading advice from his lawyer but did not indicate that his plea was based on a misunderstanding of the definition of 'use' under 924(c)(1). Abdullah also did not amend his petition after the Bailey decision. He argued that a pro se motion filed in 1996 preserved the issue for appeal; however, since he was represented by counsel, the district court returned the pro se motion without consideration. As his private counsel did not raise the Bailey argument, Abdullah's pro se attempt was insufficient for preserving the claim for review, leading the court to conclude that the issue was waived and that there was no unfairness in this determination. A district court is not obligated to consider pro se motions from represented parties.
The district court properly notified Abdullah's attorney about the potential basis for relief, although the attorney failed to respond adequately. Abdullah had options to address this, including terminating his attorney to pursue his Bailey argument pro se or hiring new counsel, which he could presumably afford. Abdullah's failure to raise the Bailey/Bousley argument resulted in a procedural default. As a result, he can only bring this claim in a subsequent 2255 proceeding if he can demonstrate 'cause' and actual 'prejudice' or prove his 'actual innocence.'
Abdullah claims he is actually innocent of the gun charge, but even if this were valid, his Bailey claim is time-barred due to the one-year grace period established by AEDPA, which ended on April 24, 1997. He did not demonstrate any tolling of this period. Additionally, Abdullah argues that his sentence violates constitutional protections established in Apprendi v. New Jersey, but this argument is also construed as a request for a successive 2255 motion. Since the Supreme Court has not made Apprendi retroactive for collateral review, he is barred from raising this issue in a second or successive motion.
Most of Abdullah's remaining arguments are moot or without merit due to the rejection of his Bailey claim. The district court's judgment is affirmed. The court also notes that a Certificate of Appealability (COA) is not required for Abdullah's appeal, as it was filed before AEDPA's effective date. Abdullah had previously attempted to raise the Bailey issue in a pro se Rule 60(b) motion, which was denied without prejudice.
A petitioner asserting actual innocence must prove not only innocence of the gun charge but also of any more serious charges that were dismissed in exchange for a guilty plea. Abdullah argues that the dismissed drug charges were not more serious than the gun charge because they would have been grouped with his conspiracy conviction under the Sentencing Guidelines, resulting in a lesser impact on his total sentence compared to the mandatory consecutive sentence for his gun conviction. The dissenting opinion suggests that Abdullah's attorney's poor health and communication issues hindered the raising of the Bailey issue. However, the dissent notes that the attorney had previously informed the court he could proceed with a brief extension and did not seek further extensions. Despite the attorney's health issues, there is no evidence that they directly caused the failure to raise the Bailey issue. Additionally, Abdullah was informed by the district court clerk that he needed to file pleadings through his attorney, providing him with sufficient notice to address his attorney's inaction within a nine-month period. Abdullah later raised the Apprendi issue in a pro se letter. The government concedes that Abdullah's 924(c) conviction is invalid following Bailey and Bousley, but the court majority maintains that a one-year statute of limitations under AEDPA bars relief. The dissent argues that unique circumstances, including Abdullah's timely pro se motion and the district court's return of this motion to his attorney without notifying Abdullah, warrant reconsideration of the time bar. Abdullah was represented by various attorneys during the proceedings, with one attorney citing serious health issues that affected his ability to represent Abdullah effectively.
Abdullah filed a pro se motion on March 5, 1996, concerning the Bailey issue, which had been decided in December 1995, but neither his attorney, Takiff, nor local counsel, Rohwer, brought this issue up during Abdullah's representation. After an inquiry on July 29, 1996, Abdullah was advised to proceed through his attorney. On August 19, 1996, Judge Fenner ordered that Abdullah's motion be returned to Takiff. Abdullah was likely unaware that his motion would be disregarded. The district court denied his 2255 motion on September 10, 1996, without addressing the Bailey issue. Following this, Abdullah filed another pro se motion on June 18, 1997, questioning the lack of consideration for the Bailey issue, but this was also returned without review on July 14, 1997. It was noted during oral arguments that Takiff had passed away. The record indicates minimal communication between Abdullah and Takiff, and Abdullah was unaware of the dismissal of his motion. While the majority opinion suggested Abdullah had remedies available through new counsel or self-representation, these options were deemed illusory due to communication failures. The author argues that the district court abused its discretion by rejecting Abdullah's pro se filing, which raised a valid constitutional challenge, and contends that Abdullah should not be penalized for the communication breakdown that occurred.
