Arnold F. Hohn v. United States

Eighth Circuit

Arnold F. Hohn v. United States

99 F.3d 892, 1996 WL 633268

CourtCourt of Appeals for the Eighth Circuit

DecidedFebruary 10, 1997

Docket96-3118

StatusPublished

Cited by38 cases

This text of 99 F.3d 892 (Arnold F. Hohn v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Arnold F. Hohn v. United States, 99 F.3d 892, 1996 WL 633268 (8th Cir. 1997).

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PER CURIAM.

The petitioner in this case, unsuccessful in his effort to have his sentence set aside under 28 U.S.C. § 2255, seeks review in this court. Petitioner’s appeal, however, will not lie unless we issue him a certificate of appeal-ability, and such a certificate is not available unless the petitioner makes a “substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).

The petitioner complained to the district court that at his trial the jury instructions dealing with what it means to use a firearm under 18 U.S.C. § 924(c)(1) did not conform [893]*893to the principles outlined in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). It seems to us that under these circumstances a certificate cannot issue, because the petitioner is not making a constitutional claim: He is making a claim to a federal statutory right. Bailey did no more than interpret a statute, and an incorrect application of a statute by a district court, or any other court, does not violate the Constitution. The Constitution does not guarantee that judges will always be right. It does guarantee, it is true, that persons accused of crimes will receive due process; but the petitioner makes nó due process claim with respect to the trial judge’s actions, and trial errors hardly ever rise to the level of a due process violation in any case.

United States v. Liguori, 438 F.2d 663 (2d Cir.1971), on which Judge MeMillian relies in his dissenting opinion, is not to the contrary. The predicate for that case was that the Supreme Court had on constitutional grounds invalidated certain statutory presumptions, see id. at 666-67, and the petitioners were claiming that the statute under which they were convicted was invalid because it contained an unconstitutional presumption. See id. at 665. There is no such claim here. The petitioner does not maintain, that § 924(c)(1) is unconstitutional or that it was unconstitutionally applied to him. He maintains only that the statute was wrongly applied to him.

For the foregoing reasons, we deny the certificate.

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PER CURIAM.

The petitioner in this case, unsuccessful in his effort to have his sentence set aside under 28 U.S.C. § 2255, seeks review in this court. Petitioner’s appeal, however, will not lie unless we issue him a certificate of appeal-ability, and such a certificate is not available unless the petitioner makes a “substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).

The petitioner complained to the district court that at his trial the jury instructions dealing with what it means to use a firearm under 18 U.S.C. § 924(c)(1) did not conform [893]*893to the principles outlined in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). It seems to us that under these circumstances a certificate cannot issue, because the petitioner is not making a constitutional claim: He is making a claim to a federal statutory right. Bailey did no more than interpret a statute, and an incorrect application of a statute by a district court, or any other court, does not violate the Constitution. The Constitution does not guarantee that judges will always be right. It does guarantee, it is true, that persons accused of crimes will receive due process; but the petitioner makes nó due process claim with respect to the trial judge’s actions, and trial errors hardly ever rise to the level of a due process violation in any case.

United States v. Liguori, 438 F.2d 663 (2d Cir.1971), on which Judge MeMillian relies in his dissenting opinion, is not to the contrary. The predicate for that case was that the Supreme Court had on constitutional grounds invalidated certain statutory presumptions, see id. at 666-67, and the petitioners were claiming that the statute under which they were convicted was invalid because it contained an unconstitutional presumption. See id. at 665. There is no such claim here. The petitioner does not maintain, that § 924(c)(1) is unconstitutional or that it was unconstitutionally applied to him. He maintains only that the statute was wrongly applied to him.

For the foregoing reasons, we deny the certificate.

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