UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-50302

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAMES STEPHEN JONES,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

April 13, 1999

Before GARWOOD, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:

James Stephen Jones (“Jones”), a federal prisoner, appeals the

denial of his pro se 28 U.S.C. § 2255 motion, in which he

challenges his conviction for using and carrying a firearm in

relation to the commission of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1). Jones, who pleaded guilty to

this crime, contends that there is an insufficient factual basis

for his § 924(c)(1) conviction in light of the Supreme Court’s

intervening decision in Bailey v. United States, 516 U.S. 137
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(1995).

I.

In 1991, Jones was under investigation on suspicion that he

was operating a methamphetamine laboratory from his Winnebago motor

home. On April 3, 1991, federal agents from the Drug Enforcement

Agency were conducting surveillance on Jones’ Winnebago, which was

parked on a rural lot near Bellmead, Texas. While watching that

location the agents observed Jones leaving the rural lot in another

vehicle occupied by Daniel Ray Meier (“Meier”), who was later

indicted with Jones as a codefendant. The federal agents then

stopped Jones’ vehicle at a highway intersection, and soon noticed

that Jones and Meier smelled of chemicals used to manufacture

methamphetamine. A subsequent search of the car revealed several

rounds of ammunition for a .223 Ruger rifle.

While federal agents detained Jones and Meier, other federal

agents executed a search warrant on Jones’ Winnebago and a small

trailer parked at the same location. The search of the Winnebago

produced a .223 Ruger rifle, a .357 revolver, various chemicals and

chemical recipes, and other paraphernalia used to manufacture

methamphetamine. The search of the small trailer revealed a fully

constructed methamphetamine laboratory, including numerous

chemicals needed for the manufacture of methamphetamine. A later

search of Jones’ residence in Waco, Texas, uncovered several
1 Jones also pleaded guilty to possession of a firearm by

a felon in violation of 18 U.S.C. § 922(g); aiding and abetting in

the attempted manufacture of between 100 and 1000 grams of

methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

§ 2; and constructive possession of a stolen firearm in violation

of 18 U.S.C. § 922(j).

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chemical books and recipes. Also, a Winchester rifle, a .25

caliber pistol, and .22 grams of methamphetamine were recovered

from Jones’ bedroom.

After the government presented those facts at Jones’ guilty

plea hearing, the district court accepted Jones’ plea to using and

carrying a firearm in violation of 18 U.S.C. § 924(c).1 The

district court subsequently sentenced Jones to 200 months

imprisonment, with a consecutive sentence of 60 months for the

§ 924(c) violation. On April 12, 1993, this Court denied Jones’

direct appeal in an unpublished opinion. United States v. Jones,

No. 91-8630 (5th Cir. Mar. 18, 1993). On December 16, 1996, Jones

filed a motion to vacate, set aside, or correct sentence pursuant

to 28 U.S.C. § 2255, challenging his firearm conviction. On April

8, 1997, the district court denied Jones’ habeas corpus petition on

the grounds that (1) his petition was time-barred, (2) his petition

was procedurally defaulted, and (3) there was sufficient evidence

supporting Jones’ guilty plea for using and carrying a firearm

during and in relation to a drug trafficking crime. After the

district court denied Jones’ motion for a certificate of

appealability, he moved this Court for a certificate, which we
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granted.

II.

We review the district court’s denial of Jones’ § 2255 motion

under two standards. The district court’s factual finding that

there is an adequate basis for the plea is reviewed for clear

error. United States v. Rivas, 85 F.3d 193, 194 (5th Cir.), cert.

denied, 117 S. Ct. 593 (1996). We review the district court’s

conclusions of law de novo. United States v. Faubion, 19 F.3d 226,

228 (5th Cir. 1994).

III.

In denying Jones’ habeas corpus petition, the district court

found that Jones’ petition was time-barred by recent amendments to

§ 2255, enacted as part of the Antiterrorism and Effective Death

Penalty Act of 1996, which established a one-year limitations

period for § 2255 motions. See 28 U.S.C. § 2255. The district

court’s conclusion is incorrect given the facts of this case.

Although § 2255 does contain a one-year time limit for filing

a § 2255 motion, we have consistently held that when a defendant’s

conviction became final before the enactment of AEDPA, the one-year

limitations period begins to run from April 24, 1996, the effective

date of AEDPA. United States v. Flores, 135 F.3d 1000, 1006 (5th

Cir. 1998), cert. denied, 119 S. Ct. 846 (1999). In this case,
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Jones was convicted in 1991, well before AEDPA’s effective date.

Thus, under our stated rule Jones had until April 24, 1997, to file

his § 2255 motion. Because Jones filed the motion on December 16,

1996, he did not exceed the one-year limitations period. The

district court’s finding that his petition is time-barred is

mistaken.

IV.

On appeal, Jones argues that his guilty plea must be vacated

because there is insufficient evidence in light of Bailey that he

“used or carried” a firearm. In Bailey, the Supreme Court held

that a person cannot be convicted of “use” under § 924(c)(1) for

merely possessing a firearm; the person must actively employ the

firearm. Bailey, 516 U.S. at 144. The district court rejected

Jones’ argument, finding that it was procedurally barred because

Jones never raised it on direct appeal.

It is well settled that when a habeas petitioner has

procedurally defaulted a challenge to his guilty plea by failing to

raise it on direct appeal, the claim may be raised in a § 2255

motion only if the petitioner can first demonstrate (1) cause and

prejudice, or (2) that he is “actually innocent” of the crime for

which he was convicted. See Bousley v. United States, 118 S. Ct.

1604 (1998); United States v. Torres, 163 F.3d 909, 911 (5th Cir.

1999). After the Supreme Court’s decision in Bousley, however,
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Jones cannot rely on a cause and prejudice argument to escape

procedural default. See United States v. Sanders, 157 F.3d 302,

305 (5th Cir. 1998). Thus, he must establish actual innocence in

order to secure relief.

Actual innocence means “factual innocence, and not mere legal

insufficiency.” Bousley, 118 S. Ct. at 1611. To prove actual

innocence, the petitioner “must demonstrate that, in light of all

the evidence, it is more likely than not that no reasonable juror

would have convicted him.” Id. (citations and quotations omitted).

Significantly, the government “is not limited to the existing

record to rebut any showing that petitioner might make.” Id. at

1611-12. The government is allowed “to present any admissible

evidence of petitioner’s guilt even if that evidence was not

presented during the petitioner’s plea colloquy and would not

normally have been offered before our decision in Bailey.” Id. at

1612.

Jones argues on appeal that he is actually innocent of both

using and carrying a firearm during and in relation to a drug

trafficking crime. In pressing that claim Jones contends that the

government presented no evidence at the plea colloquy that

establishes “use” under Bailey, or “carry” under Muscarello v.

United States, 524 U.S. 125 (1998). He underscores the fact that

he was stopped and arrested several miles from the nearest

recovered firearm.
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To rebut Jones’ claim of actual innocence, the government

refers to facts that were not presented at the plea colloquy;

specifically, testimony presented at the Jones’ preliminary hearing

and sentencing hearing, and facts contained in Jones’ presentence

report. According to the government, that additional evidence

demonstrates that Jones owned the Winnebago; that Jones used the

Winnebago to conduct a mobile methamphetamine operation; and that

on April 2, 1991 -- one day before Jones’ arrest -- Jones traveled

one mile east in the Winnebago. The government asserts that from

this circumstantial evidence it could reasonably be inferred that

Jones carried the two firearms recovered from the Winnebago during

and in relation to a drug trafficking crime.

Having reviewed the transcript of the plea colloquy, we find

no evidence that Jones actively “used” any of the four recovered

firearms in a manner consistent with Bailey. Similarly, looking

solely at the transcript of the plea colloquy, we find scant

evidence that Jones carried the two firearms recovered from his

bedroom, or that he carried the two firearms recovered from the

Winnebago. We note, however, that the district court denied Jones’

§ 2255 motion without considering Jones’ claim of actual innocence,

and without considering the additional evidence relied on by the

government in this appeal. Thus, in accordance with the dictates

of Bousley, we vacate the district court’s denial of Jones’ § 2255

motion, and remand this action to the district court for an
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evidentiary hearing where Jones and the government may present all

relevant evidence on the issue of Jones’ actual innocence.