### The HONORABLE DAVID S. DOTY, United State s District Judge for 1 

### the District of Minnesota. ___________ No. 96-1566

___________ Robert Rydell Williams, * * Plaintiff-Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. United States of America, * * Defendant-Appellee. *

___________ Submitted: July 26, 1996 Filed: October 22, 1996

___________ Before BOWMAN, BEAM, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.

Federal inmate Robert Rydell Williams appeals the denial of his 2 8 U.S.C. § 2255 motion for post-conviction relief. Williams argues that his 1988 convi ction for violating 18 U.S.C. § 924(c)(1) must be set asid e because jury instructions on the statutory phrase "uses . . . a firearm"
were cont rary to Bailey v. United States , 116 S. Ct. 501 (1995). Th e di strict court concluded that Williams cannot establish "actua l 1 prejudice," as United States v. Frady , 456 U.S. 152, 170 (1982), requires. We agree and therefore affirm.

A defen dant violates § 924(c)(1) if "during and in relation to an y

. . . drug trafficking crime . . . [he] uses or carries a firearm." I n Bailey , the Supreme Court held that a conviction for

### This § 2255 motion is also both successive and abusive under 2 

### McCleskey v. Zant , 499 U.S. 467 (1991), but the government d oes not contend that this affects our standard of review. Likewise, we do no t consider whether Williams's claim is even cognizable unde r § 2255 because the government has not raised the issue. Se e Anderson v. United States , 25 F.3d 704 (8th Cir. 1994). -2- "use" of a firearm "requires evidence sufficient to show an activ e employment of the firearm by the defendant, a use that makes the firearm
an operative factor in relation to the predicate offense." "Activ e employment" includes "brandishing, displaying, bartering, striking with .

. . firing or attempting to fire, a firearm." However, "[a] defendan t cannot be charged under 924(c)(1) merely for storing a weapon near drugs
or drug p roceeds." 116 S. Ct. at 505-08. Baileyoverruled our prio r decisions affirming § 924(c)(1) convictions of defendants who merely store d firea rms at their residences to protect drugs or proceeds. See, e.g. , United States v. Harris , 10 F.3d 596, 597 (8th Cir. 1993), and cases cited
.
Wi lliams's indictment charged him with two drug trafficking crime s and a § 924(c)(1) violation -- that he "did knowingly and unlawfully use and carry a firearm, namely, a Smith & Wesson .38 caliber revolver . . . during and in relation to a drug trafficking crime, namely, the knowing an d intentional possession with intent to distribute of approximately ten gram s of cocaine base." A jury convicted Williams on all three counts, and we affi rmed. United States v. Williams , 895 F.2d 1202 (8th Cir. 1990)
. Willia ms subsequently filed two unsuccessful § 2255 motions for post

conviction relief, on e of which challenged the evidentiary sufficiency of his § 924(c)(1) conviction.
Williams's trial was conducted on th e assumption that our pre- Bailey cases were the governing law of this circuit. T herefore, Williams did not object to the district court's jury instruction defining "use" of a firear m und er § 924(c)(1). In other words, the jury instruction issue he no w raises is procedurally defaulted. 2

### -3-

To obtain post-conviction relief for an erroneous jury instruction to whic h no contemporaneous objection was made, Williams must show cause excusing his procedural default and "actual prejudice" resulting from the alleged
error. Frady , 456 U.S. at 168. The actual prejudice standard is mor e rigorou s than the showing required to establish plain error on direc t appeal. 456 U.S. at 166, quoting Henderson v. Kibbe , 431 U.S. 145, 15 4 (1977); see Dalton v. United States , 862 F.2d 1307, 1309 (8th Cir. 1988). To establish such prejudice, Williams must show that an erroneous jur y instruction "worked t o his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." 456 U.S. at 17 0 (emphasis in original). We conclude that he has failed to do so for the following reasons.
First, it is not clear to us that the district court's instructio n on "use" of a firearm was plain error under Bailey . The court instructed the jury:

Two essential elements are required to be proved in order t o establish an offense of using a firearm in relation to a dru g trafficking crime. They are as follows: First, that the defendan t committeda drug trafficking crime for which he might be prosecuted in the U nited States Court; and second, that during the commissio n of the drug trafficking crime the defendant used a firearm. * * * * * The def endant is considered to have used a firearm if its presenc e in hi s possession in any manner facilitated carrying out the dru g trafficking crime. It is not necess ary that the firearm be fired in order that it may be considered as having been used.

The word "facilitated" in this instruction is more passive than the words used in Baileyto describe the concept of "active employment" -

- brand ishing, displaying, bartering, striking with, firing. But th e instruction is far more consistent with Baileythan the instruction that caused us to reverse for plain error in

### -4-

Uni ted States v. Webster , 84 F.3d 1056, 1066 (8th Cir. 1996). A n instructional error must be of "constitutional dimensions" to warrant post

conviction relief under Frady . That requires a showing that "the ailing instruc tion by itself so infected the entire trial that the resultin g convic tion violates due process, not merely [that] the instruction i s undesirable, erroneous, or even universally condemned." Henderson , 43 1 U.S. at 154, quoting Cupp v. Naughten , 414 U.S. 141, 146-47 (1973). While
we would not recommend using this instruction in a post- Bailey case, i t provides a very flimsy basis for post-conviction relief under Frady
. Second, to establish actual prejudice from an instruction error , Frady requires that Williams show a "substantial likelihood" that a properly instructed jury would have acquitted him of violating § 924(c)(1)
. 456 U .S. at 172. At trial, consistent with Williams's indictment, th e distric t court instructed the jury, "[i]t is sufficient if the Unite d States proves either that firearms were used or carried. Both do not have to be pro ved." Thus, in considering prejudice under Frady , we mus t conside r whether the evidence was sufficient to convict Williams of a "carr y" violation. Williams argues that we should not assume the jur y found a "carry" viola tion because the instructions devoted more attention to defi ning "use." But the instructions, fairly read, explicitly an d properly gave the jur y the option of finding a "carry" violation, so that option is part of the Frady analysis.
Briefly summarized, the trial evidence was that, in January 1988 , police raided a fortified Minneapolis crack house by driving a front-end loader through an exterior wall and into the first floor apartment where Williams resided. Inthat apartment, they found personal items belonging to Williams, drug paraphernalia, an unloaded .38 caliber revolver under th e couc h, and four .38 caliber bullets near the revolver. Williams wa s arrested after he broke a basement window, bent back the bars over tha t windo w, and attempted to escape. Police later found forty "chunks" o f crack cocaine and

### We do not reach the question whether this evidence would also 3 

### support a § 924(c)(1) "use" conviction. Unlike this case, Bailey did not involve a drug conspiracy. But Williams's indictment did not charge him with using the firearm during and in relationto his consp iracy offense. Had it done so, we would face the questio n whether Bailey

leaves intact p rior decisions such as United States v. Drew , 894 F.2d 965, 968 (8t h Cir.), cert. denied , 494 U.S. 1089 (1990), in which we affirmed a § 924(c)(1) "use" conviction because participants in a drug trafficking conspiracy regularly displayed guns to intimidate purchasers at a drug house. -5- $1290 in the basement apartment from which Williams had fled. His tw o conspirators were arrested in the building eight days later after resuming sales of crack cocaine.
"[T]o sus tain a conviction for `carrying' a firearm in violation of § 924(c)(1), the government must prove that [the accused] bore the firearm
on or abo ut his person during and in relation to a drug traffickin g offense." United States v. White , 81 F.3d 80, 8 3 (8th Cir. 1996). As the facts in White make clear, a person who throws a gun down and flees th e scene of a drug trafficking crime may be convict ed of a "carry" violation. Here, the government presented evidence that Williams fled the scene of on

going crack cocaine d istribution, leaving a firearm and bullets scattered in his apartment. We agree with the district co urt that this evidence was sufficient to convict Williams of a § 924(c)(1) "carry" violation. Se e United States v. Willis , 89 F.3d 1371, 1378-79 (8th Cir.), cert. denied , 65 U.S.L.W. 3265 (U.S . Oct. 7, 1996). Thus, Williams cannot prove actual prejudice under Frady
. 3
The district court order dated February 20, 1996, is affirmed.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.