Defendant Kristofferson was convicted on three felony counts following a jury trial in this Court. Count 1 charged possession of cocaine with the intent to distribute. Count 2 charged conspiracy, and Count 3 charged Kristofferson with use of a firearm in connection with Count 1, the drug trafficking charge, in violation of 18 U.S.C. § 924(c). The Court sentenced him to total of ten years and three months in federal prison on July 3, 1991. Kristofferson subsequently appealed the conviction and sentence to the Ninth Circuit, and both were summarily affirmed. Kristofferson, represented by appointed counsel, brings this motion pursuant to 28 U.S.C. § 2255 making various allegations relating to his trial attorney, and contending that his conviction for use of a firearm should be reversed pursuant to the recent Supreme Court case of United States v. Bailey, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995).
While Kristofferson's motion makes all of his claims, the government has at this time responded only to his Bailey claim. The Court heard oral argument on this claim on May 10, 1996. It is solely the Bailey claim that the Court addresses here.
II. STANDARD OF REVIEW
Title 28 U.S.C. § 2255 authorizes the federal sentencing court to discharge or resentence a defendant if it concludes that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."
The remedy available under § 2255 is as broad and comprehensive as that provided by a writ of habeas corpus. United States v. Addonizio, 442 U.S. 178, 184-85, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979). But this does not encompass all claimed errors in conviction and sentencing. Id. at 187. Habeas corpus has long been limited to attack convictions and sentences entered by a court without jurisdiction or in violation of the Constitution or laws of the United States. Id. (citations omitted). A mere error of law does not provide a basis for collateral attack unless the claimed error constituted "'a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. (quoting Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962)). When a change in the law "established that the conduct for which petitioner-had been convicted and sentenced was lawful," the Court may review petitioner's claim on a § 2255 motion. Id. at 186-87. However, it has long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. Id. at 184 (footnote omitted).
In this instance, the change in the law related to 18 U.S.C. § 924(c) constitutes a situation in which the Court must determine whether there has been a "complete miscarriage of justice."
Kristofferson and his codefendant Robert Rutz were convicted of possession with intent to distribute 2 kilograms of cocaine and conspiracy to possess with intent to distribute 2 kilograms of cocaine. Kristofferson was arrested with a loaded 9 millimeter Smith & Wesson handgun, and Rutz had a loaded .25 caliber semi-automatic pistol.
At trial, the evidence revealed that Kristofferson and William Brooks, an informant, had a series of recorded telephone conversations in the Spring of 1990 regarding Brooks' attempt to purchase cocaine from Kristofferson. Kristofferson and Brooks arranged a meeting for June 7, 1990. On that day, Brooks and an undercover agent met Kristofferson in Kenwood in a parking lot near the firehouse. They met several times on June 7. When they could not reach an agreement, Kristofferson left the scene, but later returned. Brooks then departed in Kristofferson's truck. Brooks told the agents that he had been taken by Kristofferson to see the cocaine, which was then in Rutz' car. Kristofferson drove Brooks back to the firehouse, dropped him off, and drove away. Police officers then located Rutz and attempted to stop him, but he refused and led the police on a chase during which he threw a package containing 2 kilograms of cocaine out of the car window.
Meanwhile, Kristofferson had returned to the firehouse in his truck. Kristofferson sat in his truck with the motor running while Brooks talked to him through the driver's side window. Sergeant Harrington approached the truck and identified himself as a police officer. When Kristofferson put the truck in gear, Sergeant Harrington pointed his gun at Kristofferson's head, and he was then arrested. Harrington's search of the car revealed the loaded 9 millimeter gun under the front of the driver's seat.
At trial, Kristofferson testified that he had been threatened by Brooks, the informant, and had purchased the gun for protection. He testified that he planned to either shoot or arrest Brooks during the drug transaction.
Title 18 U.S.C. § 924(c)(1) provides that a person who "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm" is subject to a five-year maximum sentence. At the time of Kristofferson's trial and conviction, the Ninth Circuit had held that
If the firearm is within the possession or control of a person who commits an underlying crime as defined by the statute, and the circumstances of the case show that the firearm facilitated or had a role in the crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or intimidate others, whether or not such display or discharge in fact occurred, then there is a violation of the statute.