* District Judge of the Western District of Louisiana, sitting by

designation.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30882

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WILLIAM CARTER,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Louisiana

July 8, 1997

Before WIENER, PARKER, Circuit Judges, and LITTLE,* District Judge.

PER CURIAM:

William Carter (“Carter”) appeals the district court’s denial

of his 28 U.S.C. § 2255 motion, arguing that under the Supreme

Court’s decision in Bailey v. United States, -- U.S. --, 116 S. Ct.

501, 133 L. Ed. 2d 472 (1995), his conviction for use of a firearm

in connection with the commission of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1), should be reversed. We agree

and reverse the conviction.
2

FACTS AND PROCEEDINGS BELOW

Pursuant to a plea agreement, Carter pleaded guilty in 1992 to

conspiracy to possess with intent to distribute cocaine and to use

of a firearm in connection with the commission of a drug

trafficking crime. He did not plead to, nor was he charged with,

the statute’s alternative, that is, carrying a firearm in

connection with the commission of a drug trafficking crime. 

At the plea hearing Carter affirmed the following version of

the facts as presented by the Government, and such is the totality

of the facts presented at the plea hearing regarding the location

and use of the firearm.

The United States would show that throughout the

aforedescribed drug trafficking offense, a Ruger

semiautomatic pistol, model P-85, 9 millimeter,

bearing serial No. 30598514, was located in the

passenger compartment of the defendant’s, William

Carter’s, automobile. The United States would

introduce evidence to show that both defendant

Carter and Fennidy had access to the weapon, and

that defendant Fennidy was the lawful owner of the

handgun....

In 1996, Carter filed a § 2255 motion arguing that under

Bailey, the facts did not support his § 924(c)(1) conviction for

“use” of a firearm in connection with a drug transaction. The

district court relied on its findings in Carter’s driving

companion’s (Keith Fennidy’s) § 2255 action that the firearm was on

top of the car’s console and was therefore used in the drug

transaction in that it was “displayed.” The district court denied

Carter’s § 2255 motion.

The district court entered its final judgment on May 14, 1996

and Carter filed a notice of appeal on June 3, 1996. He proceeds
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in forma pauperis, arguing that under Bailey, there was an

insufficient factual basis upon which to accept his guilty plea.

The district court did not consider the notice of appeal as a

request for a certificate of appealability (“COA”) and thus never

granted or denied a COA.

DISCUSSION

A. The COA after Lindh

As an initial matter, we must address the applicability of the

COA requirement created by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214, in

light of the Supreme Court’s decision in Lindh v. Murphy, -- U.S.

--, -- S. Ct. --. -- L. Ed. 2d --, 1997 WL 338568 (June 23, 1997).

In Lindh, the Supreme Court held that AEDPA’s amendments to the

chapter of Title 28 which includes, inter alia, the COA

requirement, apply only to cases filed after the AEDPA’s effective

date. “[T]he new provisions of chapter 153 generally apply only to

cases filed after the Act became effective.” Lindh, 1997 WL

338568, at *8. 

The AEDPA amended 28 U.S.C. § 2253 to require a COA before an

appeal may proceed in a § 2255 or a § 2254 action. By deciding

that the chapter containing the new COA requirement applies only to

cases filed after the AEDPA’s effective date, Lindh overruled our

previous holdings in United States v. Orozco, 103 F.3d 389 (5th

Cir. 1996), and Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996),

cert. denied, -- U.S. --, 117 S. Ct. 1114, -- L. Ed. 2d -- (1997),

and their progeny, regarding the applicability of the COA
 

1 Of course, in keeping with our evolved consistency of treatment

of the new COA requirement for both § 2254 and § 2255 actions, the Court’s

pronouncement in Lindh extends to § 2254 appeals as well. See, e.g.,

United States v. Youngblood, -- F.3d --, 1997 WL ------ (5th Cir. June 27,

1997) (making uniform the practice that a petitioner must apply to the

district court for a COA prior to making such a request of this court in

both § 2255 and § 2254 actions); see also Edwards v. United States, -- F.3d

--, 1997 WL 282509, *1 (11th Cir. May 30, 1997) (same); Lozado v. United

States, 107 F.3d 1011, 1016-17 (2d Cir. 1997) (same). Such consistency and

uniformity is the only logical approach for a sound, orderly practice for

this circuit. Thus, § 2254 litigation is also subject to the COA

requirement only when a § 2254 petition is filed in the district court

after the AEDPA’s effective date of April 24, 1996.

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requirement to § 2254 and §2255 appeals. Following Lindh, we hold

that § 2255 appellants are not subject to this COA requirement

unless their § 2255 petitions were filed in the district court

after the AEDPA’s effective date of April 24, 1996. Because

Carter’s § 2255 petition was filed in the district court prior to

the AEDPA’s effective date, Carter is not subject to the COA

requirement.1 

B. Carter’s Conviction after Bailey

Having determined that Carter need not have a COA as a

prerequisite to an appeal to this court, we must now consider

whether his conviction stands under a post-Bailey understanding of

“use” of a firearm in connection with the commission of a drug

trafficking offense. See 18 U.S.C. § 924(c)(1); United States v.

McPhail, 112 F.3d 197 (5th Cir. 1997) (holding that Bailey applies

retroactively to cases on collateral review). 

A court cannot accept a guilty plea unless there is a

sufficient factual basis for the plea. United States v. Armstrong,

951 F.2d 626, 629 (5th Cir. 1992). The factual basis must appear

in the record and must be sufficiently specific to allow the court
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to determine if the defendant’s conduct was within the ambit of

that defined as criminal. United States v. Adams, 961 F.2d 505,

508 (5th Cir. 1992); Armstrong, 951 F.2d at 629. The district

court’s acceptance of a guilty plea is a factual finding reviewable

under the clearly erroneous standard. Id. 

Relief from a formal or technical violation of Rule 11 is not

available in a § 2255 collateral attack, but instead is available

only upon a showing of prejudice. Id. There is obvious prejudice

to Carter in entering a plea of guilty to a crime which, based on

the facts in the record, he did not actually commit. See Id.

2.

Carter was convicted of “using” a firearm and was not charged

with “carrying” a firearm in relation to a drug trafficking crime.

Thus, the requirements for “carrying” a firearm under § 924(c) do

not apply to Carter. See United States v. Garcia, 86 F.3d 394, 403

(5th Cir. 1996) (in applying Bailey, refusing to address whether

facts might have upheld conviction under “carry” prong of § 924(c)

because defendant was charged only with “use”), cert. denied, --

U.S. --, 117 S. Ct. 752, 136 L. Ed. 2d 688 (1997).

A conviction under § 924(c) requires that the defendant (1)

used or carried a firearm, (2) during and in relation to a drugtrafficking offense. See 18 U.S.C. § 924(c). Prior to Bailey, §

924 was regarded as merely requiring evidence that the “firearm was

available to provide protection to the defendant in connection with

his engagement in drug trafficking.” United States v. Ivy, 973

F.2d 1184, 1189 (5th Cir. 1992). In Bailey, the Supreme Court
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reversed the § 924(c) convictions of two defendants, one of whom

had a gun in his car trunk and the other of whom had a gun in a

closet along with crack cocaine. The Court held that a conviction

for “use” of a firearm requires that the evidence be sufficient to

“show active employment of the firearm” by the defendant. Bailey,

116 S. Ct. at 506. The Court explained that “use” includes

“brandishing, displaying, bartering, striking with, and most

obviously, firing or attempting to fire, a firearm.” Id. at 508.

In addition, the “silent but obvious and forceful presence of a gun

on a table can be a ‘use.’” Id. However, “[a] defendant cannot be

charged under § 924(c)(1) merely for storing a weapon near drugs or

drug proceeds.” Id. “‘[U]se’ cannot extend to encompass [the]

action” of “conceal[ing] a gun nearby to be ready for an imminent

confrontation.” Id. at 508. The gun must be disclosed or

mentioned by the defendant. Id. In sum, in order to convict a

defendant for a § 924(c)(1) violation on a “use” theory, the

government must present evidence sufficient to show active

employment of the firearm. Bailey, 116 S. Ct. at 508-09. It is no

longer enough to show that the defendant merely stored a weapon

near drugs or drug proceeds to establish that the defendant used

the weapon during or in relation to drug trafficking activities.

Id.; McPhail, 112 F.3d 199. 

3.

As previously stated, there must be a factual basis to support

a district court’s acceptance of a guilty plea, see Fed. R. Crim.

P. 11(f); United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.
7

1984), and as such, the proper approach is to review the district

court’s acceptance of a guilty plea for clear error. 

At the plea hearing, the government offered that a

semiautomatic pistol “was located in the passenger compartment of

the defendant’s, William Carter’s, automobile” and that the

“defendant Carter...had access to the weapon.” No other facts

related to the firearm were recited. Under the Supreme Court’s

exposition of the statutory term “use” in Bailey, such a factual

basis is an insufficient basis for the acceptance of a guilty plea

to this offense since the mere location inside an automobile does

not, without more, equate with the “use” of a firearm in relation

to a drug trafficking offense. See McPhail, 112 F.3d at 199

(holding that insufficient under Bailey that weapon stored near

drugs or drug proceeds to establish “use”); United States v. Hall,

110 F.3d 1155, 1159-1161 (5th Cir. 1997) (holding that evidence

insufficient to sustain “use” conviction where firearm on floor of

room in which defendant was located, drugs were on table in room,

but no evidence that defendant disclosed, displayed, mentioned or

actively employed firearm in any way). 

CONCLUSION

For the foregoing reasons, we conclude that there is not a

factual basis for Carter’s plea of guilty to the use of a firearm

in relation to a drug trafficking crime in violation of 18 U.S.C.

§ 924(c)(1). When a plea has been accepted in violation of Rule

Fed. R. Crim. P. 11(f), our practice is to reverse, vacate and

remand for entry of a new plea. See Hall, 110 F.3d at 1162.
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Accordingly, the judgment of the district court is REVERSED,

Carter’s 18 U.S.C. § 924(c)(1) conviction is REVERSED, his sentence

is VACATED, and this case is REMANDED for further proceedings.