PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. EDMOND LEON LEOPARD,

Defendant-Appellant. No. 98-7013

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 97-CV-149-S)

SUBMITTED ON APPLICATION FOR A CERTIFICATE OF APPEALABILITY Filed March 16, 1999

Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.

PER CURIAM

.

This matter is before the court on defendant’s appl ication for a certificate of appealability (COA). Defendant seeks to appeal from an order denying his motion to vacate, set aside or correct sentence und er 28 U.S.C. § 2255. For1 After examining the application and preliminary rec ord, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument.

-2- procedural reasons explained below, we grant COA, v acate the order denying the § 2255 motion, and remand the case with directions to appoint counsel and conduct further proceedings. 1 We do not, however, express any opinion on the ultimate disposition of the substantive grounds rai sed in the motion. This court’s opinion on defendant’s direct appeal s ets out the factual background relating to his prosecution, much of which need not be repeated here.
See United States v. Leopard , 936 F.2d 1138 (10th Cir. 1991). Defendant was convicted by a jury of (I) attempting to manufactur e methamphetamine; (II) possessing a listed chemical with intent to manufacture methamphetamine; (III) possessing with intent to distribute methamph etamine; (IV) using or carrying a firearm during and in relation to a drug traffick ing offense; and (V) being a felon in possession of a firearm. As for sentencin g, [t]he presentence report provided for a base offens e level of 36 which was based on testimony that 41.7 pounds of me thamphetamine could have been produced by [defendant] with the ch emicals and equipment involved. The district court . . . follo wed the presentence report and sentenced [him] to a term of 327 months as to each of counts I and III and 120 months as to each of count s II and V, all terms to be served concurrently. As to count IV, [ defendant] was sentenced to sixty months . . . to be served consec utively to the sentences in the remaining counts.-3-

Id. at 1139-40. On appeal, he unsuccessfully challeng ed the sufficiency of the evidence on count I; the admission of a pistol foun d during a warrantless search; the failure to charge on the lesser included offens e of possession; and the amount of methamphetamine deemed producible for sentencing purposes. Id. at 1140. In March 1997, defendant commenced this § 2255 proc eeding. He raised two grounds for relief, namely, erroneous instructi on on “use” of a firearm and unsubstantiated sentencing for d-methamphetamine, and asserted ineffective assistance of counsel and an intervening change in law to excuse the omission of these issues on direct appeal. See R. Vol. I, doc. 2 (§ 2255 motion) at 5-6; doc. 3 (supporting memorandum). He later sought to amend his § 2255 motion to add sentencing objections with respect to the listed-ch emical and firearm-possession counts. The district court set the matter for hear ing, granted the government’s application for a writ of habeas corpus ad proseque ndum to secure defendant’s appearance, but denied defendant’s motion for appoi ntment of counsel. At the hearing, the district court directed the gov ernment to respond to the motion to amend and took a renewed motion for appoi ntment of counsel under advisement. Shortly after the government filed its response, the court issued the order under review, denying relief on the two groun ds raised in the initial § 2255 motion and dismissing the case without any referenc e to the pending motions for amendment and appointment of counsel.2 Defendant paid the fee for this appeal and, hence, may not be sufficiently

“indigent” for appointment of counsel under 28 U.S. C. § 1915, but there is no indication he would be disqualified for appointmentof counsel under Rule 8(c), which incorporates the broader “financially unable to obtain counsel” test of § 3006A. See United States v. Osuna , 141 F.3d 1412, 1414 (10th Cir. 1998). -4- Denial of Counsel at Evidentiary Hearing The district court ordered the evidentiary hearing under United States v. Glover , 97 F.3d 1345 (10th Cir. 1996), for the governmentto offer evidence satisfying its burden to substantiate an enhanced d -methamphetamine sentence previously imposed on defendant without such substantiation. See id. at 1350. Defendant was entitled to counsel at this hearing. As a general matter, simply by ordering a hearing the district court brought into play the mandate of 28 U.S.C. § 2255 Rule 8(c) : “[i]f an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. § 3006A[b].” 2See Swazo v. Wyoming Dep’t of Corrections , 23 F.3d 332, 333 (10th Cir. 1994) (following gene ral view that Rule 8(c) “makes the appointment of counsel mandatory when evidentiary hearings are required.”). And, more specifically, given its functional overlap with the deficient sentencing proceeding it essentially served to complete, the “ Glover hearing” ordered in this case should have shared th e latter’s status as “a critical stage of the criminal proceeding” at which legal representation is constitutionally required under Gardner v. Florida , 430 U.S. 349, 358 (1977). Cf. Green v.-5-

Reynolds , 57 F.3d 956, 961 (10th Cir. 1995) (where state po st-conviction hearing “serves as a substitute” for deficient criminal pro ceeding, it requires same constitutional process). Indeed, this court has repeatedly so held in recent unpublished dispositions. See United States v. Youngpeter , No. 97-5142, 1998 WL 171838 (10th Cir. April 13, 1998); see also United States v. Randy Glover , No. 97-5239, 1998 WL 544408 (10th Cir. Aug. 27, 1998) (following Youngpeter ); United States v. Roy Glover , No. 97-5130, 1998 WL 544406 (10th Cir. Aug. 27, 1998) (same). For guidance and consistency, we nowacknowledge this circuit’s practice, and its constitutional rationale, in a pr ecedential decision. Under the circumstances, including the additional p rocedural errors we identify in connection with some of defendant’s oth er claims, we deem it most appropriate to remand directly for the appointment of counsel and the conduct of another hearing without delay for briefing on this appeal. Practical as well as legal considerations underlie this decision. The only possible defense to the wrongful denial of counsel would involve the assertion of harmless error, and the uncounseled Glover hearing has never been transcribed, much less reviewed, for this purp ose. And, to appoint counsel now to assess and argue the harmfulness of not appo inting counsel before strikes us as a peculiar, if not paradoxical, implementatio n of the right to representation. If an appointment is to be made in either event--to assist now on this appeal, or in-6-

evidentiary proceedings on remand--it is far betterto have counsel actually afford defendant the representation to which he is constitutionally and statutorily entitled in the district court. Bailey Instructional Error The jury convicted defendant of using or carrying afirearm in violation of 18 U.S.C. § 924(c), pursuant to an instruction defi cient under the subsequent definition of “use” in Bailey v. United States , 516 U.S. 137 (1995). The district court acknowledged this error, but refused to grant relief after determini ng that even if the jury had found defendant guilty under the erroneous use instruction, that finding would necessarily have entailed the el ements required for a proper guilt determination on the carry prong of the § 924(c) charge. This deductive analysis, requiring the government to demonstrate anecessary inference of properly found § 924(c) guilt to foreclose relief f or an erroneous use instruction, was at one time the controlling approach to § 2255 Bailey claims in this circuit.
See United States v. Holland , 116 F.3d 1353, 1358 (10th Cir.), cert. denied , 118 S. Ct. 253 (1997). However, it has been supplanted by the holding in Bousley v. United States , 523 U.S. 614 (1998), that collateral Bailey claims require actual innocence of the § 924(c) charge before relief may be granted. See United States v. Powell , 159 F.3d 500, 501-02 (10th Cir. 1998), petition for cert. filed , (U.S. Jan. 14, 1999) (No. 98-7708). Now, Bailey claims are foreclosed if the evidence3 One circuit has limited Bousley “to its facts,” i.e., to Bailey errors in the

plea context, see Hilliard v. United States , 157 F.3d 444, 450 n.4 (6th Cir. 1998), which would make it inapplicable here. Such a limi tation is unsupportable. Bousley required actual innocence, as opposed to “cause an d prejudice,” for collateral Bailey claims, because it held Bailey ’s alteration of the meaning of “use” was “not . . . so novel as to constitute caus e to excuse the failure to raise a Bailey -type challenge on direct appeal.” Powell , 159 F.3d at 502. As “[t]he standard for determining ‘cause’ for a procedural d efault does not depend on the method of conviction,” United States v. Sorrells , 145 F.3d 744, 750 n.4 (5th Cir. 1998), Bousley ’s conclusion about Bailey ’s novelty, and the resultant foreclosure of “cause” based thereon, would apply to any § 2255 motion, whether the reliance on pre- Bailey law had occurred at trial or in a plea proceeding. Other circuits have recognized this point explicitly or implicitly. See, e.g. , DeJesus v. United States , 161 F.3d 99, 103 (2d Cir. 1998); Ramos , 147 F.3d 281 (3d Cir.); Sorrells , 145 F.3d at 750 (5th Cir.); Velasquez , 131 F.3d 766 (8th Cir.). -7- was legally sufficient to convict for carry, see, e.g. , Velasquez v. United States , 131 F.3d 766, 767 (8th Cir. 1997), or use, see, e.g. , United States v. Ramos , 147 F.3d 281, 284-85, 287 (3d Cir. 1998). Certainly Bousley made it more difficult to obtain collateral relief on the basis of Bailey instructional error. 3 Significantly, however, Bousley did not adopt and subsume the Holland approach under a more rigorous standard--if that w ere the case, we could still simply affirm a correct de nial of § 2255 relief under the Holland formulation because, a fortiori, the defendant cou ld not satisfy the higher Bousley standard. Rather, as explained below, Bousley applied a tougher but categorically different test. Under Holland , we took the (tainted) use determination as a given and assessed its logical implications for a proper § 92 4(c) charge, considering the-8-

record evidence only as necessary to translate the given use findings--themselves untested for evidentiary sufficiency--into proper u se or carry findings. Thus, for example, in United States v. Durham , 139 F.3d 1325 (10th Cir.) (direct appeal applying Holland analysis), cert. denied , 119 S. Ct. 158 (1998), this court (1) noted that the elements of “possession or . . . control” of a firearm “during and in relation to the . . . drug trafficking crime” we re properly included in an otherwise erroneous § 924(c) instruction; (2) inferred that these elements were thus “necessarily included in the jury’s verdict” ( without any assessment of the evidentiary sufficiency for these elements); (3) co ncluded that, as the only evidence of possession involved a firearm in the de fendant’s truck, “the jury’s finding that [the defendant] was in possession of the firearm necessarily ‘embraces’ the finding that [he] had transported [i t];” and (4) held “the jury’s verdict is the ‘functional equivalent’ of finding a‘carry’ violation,” and, accordingly, denied relief. Id. at 1335-36 (further quotation omitted). Under Bousley ’s actual-innocence test, on the other hand, no deductive demonstration of the Holland sort is necessary, but, by the same token, the evidentiary basis for the findings which that demon stration took as given is now the object of the inquiry, to be assessed for legal sufficiency. Thus, if defendant can establish his factual innocence of both the use and carry prongs of § 924(c)--admittedly no easy task--he is entitled t o relief for the acknowledged4 We do not deny our authority to conduct an actual-innocence review and, if

appropriate, to affirm under Bousley without remanding. We decide only as a prudential matter that, under the circumstances, itis preferable to have the issue fleshed out by counsel in the district court, where thus far it has received no explicit attention (typically, a Holland analysis of Bailey error would have been followed by a review for actual innocence, to asses s this alternative basis for excusing a default on direct appeal; however, by co nducting its analysis in terms of “harmless error” rather than cause-and-prejudice , R. Vol. I, tab 22, at 3, the district court appears to have skirted the actual-i nnocence inquiry entirely). -9- Bailey error regardless of what the jury expressly or imp liedly found on the inadequate evidentiary record. Thus, it will not do to review the district court’s deductive Holland analysis and, if it is correct, simply affirm with an “a fortiori” gesture toward Bousley

. Until the trial transcript is obtained and assessedfor evidentiary sufficiency on the use or carry prongs of § 924(c), a definitive ruling on the Bailey claim would be premature. As we are remanding the case for app ointment of counsel and further proceedings on the Glover issue in any event, we deem it the best course to include the Bailey -Bousley claim in the remand and let counsel develop the appropriate evidentiary argument before the distric t court, rather than to attempt a resolution of the matter on this underdeveloped appeal. 4-10-

Listed-Chemical Sentencing Before 1991 Guideline Amendme nt Defendant raised another serious claim in the propo sed amendment to his § 2255 motion, which the district court failed to a ddress in its dispositive order even though it had directed the government to respo nd to the amendment. The government’s response raised procedural bar concern s, but, if the claim discussed here is the evident winner it appears to be, such c oncerns could well be obviated by defendant’s allegation of ineffective assistance of counsel in his § 2255 motion. See, e.g. , Glover , 97 F.3d at 1348-49, 1350-51; Rogers v. United States , 91 F.3d 1388, 1391 (10th Cir. 1996). As explained below, defendant’s claim rests on specific circuit authority undercutting the sent ence he received on one of his counts of conviction. At the very least, this clai m raises a substantial question. In 1990, when defendant was sentenced for possessio n of a listed chemical with intent to manufacture a controlled substance, see 21 U.S.C. § 841(d)(2), “the guideline most readily applicable to drug crimes,” i.e., U.S.S.G. § 2D1.1, “fail[ed] . . . to cover the described offense,” and there wa s “no sufficiently analogous guideline” to apply in accordance with U.S.S.G. § 2X5.1. United States v. Voss , 956 F.2d 1007, 1013 (10th Cir. 1992). Thus, in Voss , we vacated a listed-chemical sentence calculated like a controll ed-substance sentence under U.S.S.G § 2D1.1 (i.e., base offense level set by re ference to controlled substance produced from listed chemical rather than by refere nce to listed chemical itself),5 An amendment to the guidelines, effective November 1991, obviated the

Voss problem (prospectively) by directing use of either the listed-chemical offense level or the controlled-substance offense level, whichever is higher. See United States v. Wagner , 994 F.2d 1467, 1471-72 (10th Cir. 1993); see also Voss , 956 F.2d at 1011 (noting amendment but holding that“[b]ecause [it] is substantive rather than merely clarifying, we do no t apply it”). -11- and remanded for re-sentencing under 18 U.S.C. § 35 53, which governs sentencing in the absence of an applicable guideline. See 956 F.2d at 1008-13. Indeed, we held this misapplication of the then-controlling law 5to be plain error.
See id. at 1009. Defendant asserted in his motion to amend that the same error had been made in his case. While we are reluctant to say th e performance-and-prejudice test for ineffective assistance of counsel is necessarily satisfied here, see generally Strickland v. Washington , 466 U.S. 668, 686-87 (1984), it would be equally premature to hold to the contrary, particul arly without any development and analysis of the issue by the district court to review. And, once again, it seems appointed counsel could be of considerable assistan ce.-12- Conclusion In sum, without resolving the underlying merits of the substantial claims discussed above, we hold that their extant disposit ion cannot stand and that counsel should be appointed to assist in their pres entation before the district court on remand. We also note that there are some additi onal issues, advanced in more obscure fashion by the pro se defendant, which we h ave not directly addressed. While counsel should be free on remand to pursue th ese, as appropriate, we do not intend to force or foreclose any determination regarding their substantive and procedural merit. Defendant’s application for a certificate of appeal ability is GRANTED. The judgment of the district court is VACATED, and the cause is REMANDED for further proceedings consistent with this opinio n.