BOUSLEY v. UNITED STATES

KENNETH EUGENE BOUSLEY, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eighth circuit

 Justice Scalia, with whom Justice Thomas joins, dissenting.

 I agree with the Court that petitioner has not demonstrated “cause” for failing to challenge the validity of his guilty plea on direct review. 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. Ante, at 8–9, quoting Schlup v. Delo, 513 U. S. 298, 327–328 (1995).

 No criminal-law system can function without rules of procedure conjoined with a rule of finality. Evidence not introduced, or objections not made, at the appropriate time cannot be brought forward to reopen the conviction after judgment has been rendered. In the United States, we have developed generous exceptions to the rule of finality, one of which permits reopening, via habeas corpus, when the petitioner shows “cause” excusing the procedural default, and “actual prejudice” resulting from the alleged error. United States v. Frady, 456 U. S. 152, 167–168 (1982). We have gone even beyond that generous exception in a certain class of cases: cases that have actually gone to trial. There we have held that, “even in the absence of a showing of cause for the procedural default,” habeas corpus will be granted “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, supra, at 321 (internal quotation marks omitted). In every one of our cases that has considered the possibility of applying this so-called actual-innocence exception, a defendant had asked a habeas court to adjudicate a successive or procedurally defaulted constitutional claim after his conviction by a jury. See Kuhlmann v. Wilson, 477 U. S. 436, 441, 452 (1986) (opinion of Powell, J.); Murray v. Carrier, 477 U. S. 478, 482, 495–496 (1986); Smith v. Murray, 477 U. S. 527, 529, 537–538 (1986); McCleskey v. Zant, 499 U. S. 467, 471, 502 (1991); Sawyer v. Whitley, 505 U. S. 333, 336–337, 339–340 (1992); Schlup, supra, at 305, 317–332.

 There are good reasons for this limitation: First and foremost, it is feasible to make an accurate assessment of “actual innocence” when a trial has been had. 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.” 513 U. S., at 327 (emphasis added). That “new evidence” was to be evaluated, of course, along with the “old evidence,” consisting of the transcript of the trial. The habeas court was to “make its determination concerning the petitioner’s innocence in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.” Schlup, supra, at 328 (internal quotation marks omitted). As the Court’s opinion today makes clear, ante, at 9, the Government is permitted to supplement the trial record with any additional evidence of guilt, but the court begins with (and ordinarily ends with) a complete trial transcript to rely upon. 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? Presumably the defendant will introduce evidence (perhaps nothing more than his own testimony) 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. This seems to me not to remedy a miscarriage of justice, but to produce one.¹

 Secondly, the Court has given as one of its justifications for the super-generous miscarriage-of-justice exception to inexcusable default, “the fact that habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare.” Schlup, supra, at 321. That may be true enough of petitions challenging jury convictions; it assuredly will not be true of petitions challenging the “voluntariness” of guilty pleas. I put “voluntariness” in quotation marks, because we are not dealing here with only coerced confessions, which may indeed be rare enough. The present case is here because, in Henderson v. Morgan, 426 U. S. 637, 644–646 (1976), this Court held that where neither the indictment, defense counsel, nor the trial court explained to the defendant that intent to kill was an element of second-degree murder, his plea to that offense was “involuntary.” A plea, the Court explained, can “not be voluntary in the sense that it constitute[s] an intelligent admission that he committed the offense unless the defendant receive[s] ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’   ” Id., at 645, quoting Smith v. O’Grady, 312 U. S. 329, 334 (1941). Of course the word “voluntary” had never been used (by precise speakers, at least) in that sense—in the sense of “intelligent”—and what the Henderson line of cases did was, by sleight-of-tongue, to obliterate the distinction between involuntary confessions and misinformed or even uninformed confessions. Once all those categories have been lumped together, the cases within them are not at all rare, but indeed exceedingly numerous.

 It is well established that “when this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Rivers v. Roadway Express, Inc., 511 U. S. 298, 313, n. 12 (1994). Thus, every time this Court resolves a Circuit split regarding the elements of a crime defined in a federal statute, most if not all defendants who pleaded guilty in those Circuits on the losing end of the split will have confessed “involuntarily,” having been advised by the Court, or by their counsel, that the law was what (as it turns out) it was not—or even (since this would suffice for application of Henderson) merely not having been advised that the law was what (as it turns out) it was. Indeed the latter basis for “involuntariness” (mere lack of “real notice of the charge against him,” Henderson, supra, at 165) might be available even to those defendants pleading guilty in the Circuits on the winning side of the split. Thus, our decision in Bailey v. United States, 516 U. S. 137 (1995), has generated a flood of 28 U. S. C. §2255 habeas petitions, each asserting actual innocence of “using” a firearm in violation of 18 U. S. C. §924(c). This Term, we will resolve a Circuit split over the meaning of another element (“carry” a firearm) in the same statute. See Muscarello v. United States, No. 96–1654; Cleveland and Santana v. United States, No. 96–8837. And we will also resolve Circuit splits over the requisite elements of five other federal criminal statutes. See Salinas v. United States, 522 U. S. ___ (1997) (18 U. S. C. §666(a)(1)(B)); Brogan v. United States, 522 U. S. ___ (1998) (18 U. S. C. §1001); Bates v. United States, 522 U. S. ___ (1997) (20 U. S. C. §1097(a)); Bryan v. United States, No. 96–8422 (18 U. S. C. §922(a)(1)(A)); Caron v. United States, No. 97–6270 (18 U. S. C. §921(a)(20)).

 To the undeniable fact that the claim of “actual innocence” is much more likely to be available in guilty-plea cases than in jury-trial cases, there must be added the further undeniable fact that guilty-plea cases are very much more numerous than jury-trial cases. Last year, 51,647 of the 55,648 defendants convicted and sentenced in federal court (or nearly 93 percent) pleaded guilty. Administrative Office of the United States Courts, L. Mecham, Judicial Business of the United States Courts: 1997 Report of the Director 214.

 When all these factors are taken into account, it could not be clearer that the premise for our adoption in Schlup of the super-generous “miscarriage of justice” exception to normal finality rules—viz., that the cases in which defendants seek to invoke the exception would be “extremely rare”—is simply not true when the exception is extended to guilty pleas. To the contrary, the cases will be extremely frequent, placing upon the criminal-justice system a burden it will be unable to bear—especially in light of the fact, discussed earlier, that on remand the habeas trial court will not have any trial record on the basis of which to make the “actual innocence” determination.

 Not only does the disposition agreed upon today overload the criminal-justice system; it makes relief available where equity demands that relief be denied. When a defendant pleads guilty, he waives his right to have a jury make the requisite findings of guilt—typically in exchange for a lighter sentence or reduced charges. Thus, defendants plead guilty to charges that have not been proven—that perhaps could not be proven—in order to avoid conviction on charges of which they are “actually guilty,” which carry a harsher penalty. Under today’s holding, a defendant who is the “wheel-man” in a bank robbery in which a person is shot and killed, and who pleads guilty in state court to the offense of voluntary manslaughter in order to avoid trial on felony-murder charges, is entitled to federal habeas review of his contention that his guilty plea was “involuntary” because he was not advised that intent-to-kill was an element of the manslaughter offense, and that he was “actually innocent” of manslaughter because he had no intent to kill. In such a case, it is excusing the petitioner from his procedural default, not holding him to it, that would be the miscarriage of justice.

 The Court evidently seeks to avoid this absurd consequence by prescribing that the defendant’s “showing of actual innocence must also extend” to any charge the Government has “forgone,” ante, at 9. This is not even a fully satisfactory solution in theory, since it assumes that the “forgone” charge is identifiable. If, as is often the case, the bargaining occurred before the charge was filed (“charge-bargaining” instead of “plea-bargaining”), it will almost surely not be identifiable. And of course in practical terms, the solution is no solution at all. To avoid the patent inequity, the Government will be called upon to refute, without any factual record to rely upon, not only the defendant’s testimony of his innocence on the charge of conviction, but his testimony of innocence on the “forgone” charge as well—and as to the second, even the finding of “factual basis” required in federal courts, see n. 1, supra, will not exist. But even if rebuttal evidence existed, it is a bizarre waste of judicial resources to require mini-trials on charges made in dusty indictments (or indeed, if they could be identified, on charges never made), just to determine whether the defendant can litigate a procedurally defaulted challenge to a guilty plea on a different offense. Rube Goldberg would envy the scheme the Court has created.

 It would be marvellously inspiring to be able to boast that we have a criminal-justice system in which a claim of “actual innocence” will always be heard, no matter how late it is brought forward, and no matter how much the failure to bring it forward at the proper time is the defendant’s own fault. But of course we do not have such a system, and no society unwilling to devote unlimited resources to repetitive criminal litigation ever could. The “actual innocence” exception this Court has invoked to overcome inexcusable procedural default in cases decided by a jury “seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case.” Schlup, 513 U. S.,at 324. Since the balance struck there simply does not obtain in the guilty-plea context, today’s decision is not a logical extension of Schlup, and it is a grave mistake. For these reasons, I respectfully dissent.

KENNETH EUGENE BOUSLEY, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eighth circuit

 Justice Stevens, concurring in part and dissenting in part.

 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. 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. Accordingly, unless he again pleads guilty, the burden is on the Government to prove his unlawful use of a firearm.

I

 This case does not raise any question concerning the possible retroactive application of a new rule of law, cf. Teague v. Lane, 489 U. S. 288 (1989), because our decision in Bailey v. United States, 516 U. S. 137 (1995), did not change the law. It merely explained what §924(c) had meant ever since the statute was enacted. The fact that a number of 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, 491 U. S. 164 (1989). Our comment on the significance of the pre-Patterson jurisprudence applies equally to the pre-Bailey cases construing §924(c):

 “Patterson did not overrule any prior decision of this Court; rather, it held and therefore established that the prior decisions of the Courts of Appeals which read §1981 to cover discriminatory contract termination were incorrect. They were not wrong according to some abstract standard of interpretive validity, but by the rules that necessarily govern our hierarchical federal court system. Cf. Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in result). It is this Court’s responsibility to say what a statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law. A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Express, Inc., 511 U. S. 298, 312–313 (1994).

 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. The fact that all of his advisers acted in good-faith reliance on existing precedent does not mitigate the impact of that erroneous advice. 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. Our cases make it perfectly clear that a guilty plea based on such misinformation is constitutionally invalid. Smith v. O’Grady, 312 U. S. 329, 334 (1941); Henderson v. Morgan, 426 U. S. 637, 644–645 (1976). Petitioner’s conviction and punishment on the §924(c) charge “are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance ‘inherently results in a complete miscarriage of justice’ and ‘present[s] exceptional circumstances’ that justify collateral relief under [28 U. S. C.] §2255.” Davis v. United States, 417 U. S. 333, 346–347 (1974).

II

 The Government charges petitioner with “procedural default” because he did not challenge his guilty plea on direct appeal. The Court accepts this argument and therefore places the burden on petitioner to demonstrate either “cause and prejudice” or “actual innocence.” See ante, at 7. Yet the Court cites no authority for its conclusion that “even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.” Ante, at 6.1 Moreover, the primary case upon which the Government relies, United States v. Timmreck, 441 U. S. 780 (1979), actually supports the contrary proposition: that a constitutionally invalid guilty plea may be set aside on collateral attack whether or not it was challenged on appeal.

 Several years before we decided Timmreck, the Court had held that it is reversible error for a trial judge to accept a guilty plea without following the procedures dictated by Rule 11 of the Federal Rules of Criminal Procedure. McCarthy v. United States, 394 U. S. 459 (1969). The question in Timmreck was whether such an error was sufficiently serious to support a collateral attack under 28 U. S. C. §2255. Because the error was neither jurisdictional nor constitutional, we held that collateral relief was unavailable. If we had thought that the failure to challenge the constitutionality of a guilty plea on direct appeal amounted to procedural default, there would have been no need in Timmreck to rely on the critical difference between reversible error and the more fundamental kind of error that can be corrected on collateral review. The opinion makes it clear that an ordinary Rule 11 violation must be challenged on appeal; the only criterion for collateral review that it mentions is that the error must be jurisdictional or constitutional.²

 Decisions of this Court that do not involve guilty pleas are not controlling. For example, in United States v. Frady, 456 U. S. 152 (1982), two of the Court’s reasons for dismissing the §2255 claim alleging that the jury instructions were erroneous are not present in this case. First, the defendant failed to object to the jury instructions—as required by Federal Rule of Civil Procedure 30—before the jury retired to consider its verdict; no comparable Rule applies to petitioner’s claim. Second, as the Court emphasized by quoting from both United States v. Addonizio, 442 U. S. 178, 184–185 (1979), and Henderson v. Kibbe, 431 U. S. 145, 154 (1977), the prejudice to the defendant was not sufficient to warrant relief under §2255; that is plainly not the case with respect to this petitioner. Similarly, in Davis v. United States, 411 U. S. 233, 242 (1973), there was a failure to comply with Federal Rule of Civil Procedure 12(b)(2), which required challenges to the composition of the grand jury to be made by pretrial motion—a Rule that has no counterpart in the guilty plea context—coupled with the absence of the kind of prejudice that is present here.

 The Court has never held that the constitutionality of a guilty plea cannot be attacked collaterally unless it is first challenged on direct review. Moreover, as the facts of this case demonstrate, such a holding would be unwise and would defeat the very purpose of collateral review. A layman who justifiably relied on incorrect advice from the court and counsel in deciding to plead guilty to a crime that he did not commit will ordinarily continue to assume that such advice was accurate during the time for taking an appeal. The injustice of his conviction is not mitigated by the passage of time. His plea should be treated as a nullity and the conviction based on such a plea should be voided.

 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.