* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 30 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. PHILIP SCOTT MAY, Defendant-Appellant. No. 97-1063 (D.C. No. 96-N-2245) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. Philip Scott May brought this action under 28 U.S.C . § 2255, seeking to vacate his conviction under 18 U.S.C. § 924(c) in l ight of the Supreme Court’s recent decision in Bailey v. United States , 116 S. Ct. 501 (1995). The district1 The government argues that the trial court’s grant of a certificate of

appealability was in error and that this court shou ld deny the certificate because “[n]othing in Bailey enlarges or changes a constitutional principle.” Aplee. Br. at 5. Although we conclude that Mr. May is not entitl ed to relief under section 2255, we point out that a petitioner who claims he was convicted on the basis of conduct that is not criminal under Baileyhas asserted “a complete miscarriage of justice,” United States v. Holland, 116 F.3d 1353,1356 (10th Cir.), cert. denied, 118 S. Ct. 253 (1997), a due process claim sufficie nt to support the grant of a certificate of appealability.

2 The actual instructions are not part of the record . The district court accepted the instruction we quote below as accurate and the parties do not contend otherwise. The instruction at issue is as follows:

The phrase uses or carries a firearm means having a firearm or firearms available to assist or aid in the commissi on of the crime charged in Count Six of the indictment. In determining whether the defendant used or carrie d a firearm, you may consider all of the factors receiv ed in evidence in the case, including the nature of the underlying cr ime of violence, or drug trafficking crime alleged, the proximity of th e defendant to the firearm in question, and the circumstances surround ing the presence of the firearm. -2- court denied relief and granted Mr. May a certifica te of appealability pursuant to 28 U.S.C. § 2253. 1 Mr. May appeals and we affirm. Mr. May was convicted of four drug charges and of c arrying a firearm in relation to a drug trafficking crime in violation o f section 924(c)(1). The firearm conviction was based on Mr. May’s conduct in drivin g to meet his co-defendant at the scene of a proposed drug deal, bringing the pur chase money in the trunk of his car, and carrying a handgun on his person. Althoug h Mr. May was charged only under the “carry” prong of section 924(c)(1), the j ury was instructed without objection on both the “use” and “carry” prongs. 2 Mr. May did not object to theThe government is not required to prove that the de fendant

actually displayed, brandished or fired a weapon. The government is required to prove, however, beyond a reasonable dou bt, that the firearm was in the defendant’s possession or contro l at the time that the drug trafficking crime was committed. Rec., doc. 4, at 5.

3 The government concedes that the “use” instruction was incorrect under Baileybut points out that the Baileydecision did not change the law with respect to the “carry” prong of section 924(c)(1). -3- form of the instruction at trial, nor did he assert it as error in his direct appeal. See United States v. May , 52 F.3d 885 (10th Cir. 1995). As Mr. May recognizes in this appeal, the circumsta nces here are quite unusual. While Mr. May was charged only with carry ing under section 924(c)(1), the jury was instructed on both use and carry. The instruction itself is erroneous under Baileywith respect to the “use” prong, and incomplete as to the “carry” prong under Tenth Circuit and Supreme Court law, as we discuss below. No claim was made at trial or on direct appeal that th e jury was improperly instructed on a matter not charged, nor was the substance of t he instruction itself challenged. Mr. May admitted at trial that he took the gun from his house and that he carried it on his person when he drove to the scene of the purported drug deal and waited in the car for his co-defendant to complete the tra nsaction. Mr. May nonetheless asserts that he is entitled to a new trial on the s ection 924 (c)(1) charge because the instruction was directed in part to using a fir earm, an offense not charged in the indictment, and because the instruction on carr ying a firearm was incomplete. 3-4-

When, as here, a petitioner has defaulted the claim s he seeks to raise in a section 2255 motion, he must ordinarily show cause for his default and actual prejudice resulting from the error he asserts. See United States v. Holland, 116 F.3d 1353, 1356 (10th Cir.), cert. denied, 118 S. Ct. 253 (1997). We held in Holland that the petitioner had shown cause for his failur e to raise his Bailey argument at trial and on direct appeal because Bailey overturned a longstanding and widespread practice to which the Supreme Court had not spoken, but which a nearly unanimous body of lower courts had adopted. Id. We concluded that an argument based on the position later adopted in Baileyhad no reasonable basis in existing law. Id. However, no such impediment prevented Mr. May from challenging the instruction at issue here either at trial or on dir ect appeal as an improper instruction on a prong not charged in the indictmen t or as an incomplete description of a “carrying” offense. Both of those arguments were available at the time of Mr. May’s trial and direct appeal under existing law, and subsequent authority has not undermined their validity. As we pointed out in Holland, “nothing in Bailey . . . conflicts with our pre-Bai ley ‘vehicular carrying’ line of cases.” 116 F.3d at 1357 n.2 (internal quotations and citation omitted). Moreover, the Supreme Court has recently construed the elements of a section 924(c)(1) violation under the “carry” prong in a ma nner completely congruent4 Mr. May has not asserted that either his trial or appellate counsel were

ineffective in this regard. -5- with those cases. See Muscarello v. United States , Nos. 96-1654, 96-8837, 1998 WL 292058 (U.S. June 8, 1998). It is true, as Mr. May asserts, that under our vehi cular “carrying” cases the government must prove the defendant both “‘transpor ted a firearm in a vehicle and that he had actual or constructive possession o f the firearm while doing so.’” Holland, 116 F.3d at 1357 n.2 (quoting United States v. Miller , 84 F.3d 1244, 1259 (10th Cir. 1996)). The instruction that Mr. M ay challenges required the government to prove possession, but did not directl y address the transportation element required by our cases. Nonetheless, Mr. May has offered no cause for his failure to raise this deficiency either at trial or on direct appeal, 4 and we therefore are precluded from considering it. See United States v. Frady , 456 U.S. 152, 167- 68 (1982).

Accordingly, we AFFIRM the denial of Mr. Mays’ motion to vacate his conviction under 18 U.S.C. § 924(c)(1).
ENTERED FOR THE COURT-6- Stephanie K. Seymour Chief Judge