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

### APR 12 2000 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEVIN HAUGH, Petitioner-Appellant,

v. WARDEN BOOKER, Respondent-Appellee, No. 99-3333

Appeal from the United States District Court

for the District of Kansas (D.C. No. 98-3018-RDR)

SUBMITTED ON THE BRIEFS: Kevin Haugh, Pro Se.

Before SEYMOUR , Chief Judge, EBEL and BRISCOE , Circuit Judges.

SEYMOUR , Chief Judge.1 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)(2); 10th Cir. R. 34.1(G). Th e cause is therefore ordered submitted without oral argument.

-2- Kevin Haugh pled guilty in federal district court i n Massachusetts to one count of conspiracy to commit murder in violation o f 18 U.S.C. § 1959(a)(5), and one count of using and carrying a firearm, or aidin g and abetting the use and carrying of a firearm, in violation of 18 U.S.C. § 924(c) and § 2. He is presently confined in Leavenworth, Kansas. He filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the f ederal district court in Kansas challenging his firearms conviction on the basis of the Supreme Court’s decision in Bailey v. United States , 516 U.S. 137 (1995). The district court ruled th at Mr. Haugh could not proceed under section 2241 because 28 U.S.C. § 2255 was the appropriate remedy, and dismissed the petition. Mr . Haugh appeals and we affirm, albeit on different grounds than those reli ed on by the district court. 1

I “A petition under 28 U.S.C. § 2241 attacks the exec ution of a sentence rather than its validity and must be filed in the district where the prisoner is confined.” Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996). “A 28 U.S.C. § 2255 petition attacks the legality of detention, and must be file d in the district that imposed the2 Mr. Haugh originally asserted that a section 2255 motion would be barred

under In re Dorsainvil , 119 F.3d 245 (3d Cir. 1997). In response the gov ernment pointed out that Dorsainvildealt with successive petitions and was thus not relevant, and also noted that the claim might nonet heless be time barred. Mr. Haugh then argued to the district court that relief under section 2241 was appropriate because a section 2255 motion would be barred by the limitation period. -3- sentence.” Id. (citations omitted). Section 2255 specifically prohibits a district court from entertaining an app lication for a writ of habeas corpus on behalf of a prisoner who is author ized to apply for relief by motion pursuant to § 2255 “if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it al so appears that the remedy by motion is inadequate or ineffective to te st the legality of his detention.” Id. (quoting 28 U.S.C. § 2255). It is undisputed that Mr. Haugh has never filed a s ection 2255 motion with the sentencing court in Massachusetts. The district co urt held relief under that section is now barred because Mr. Haugh failed to file in Mass achusetts federal court within the one-year limitation period provided by the Antiterr orism and Effective Death Penalty Act (AEDPA), which the court held in this case woul d have expired on April 24, 1997, one year after the effective date of the Act. 2 The court went on to hold that section 2255 is not rendered inadequate or ineffect ive merely because such relief is procedurally barred, and dismissed the motion. We begin our consideration of this appeal with a ch ronology of relevant events. Mr. Haugh was convicted by a guilty plea in June 19 95. The Supreme Court-4-

handed down its decision in Baileyin December of that year. Because Bailey vacated a conviction on direct appeal, however, the Court in that opinion did not address whether the issue could be raised on collat eral review. See United States v. Lloyd, 188 F.3d 184, 186 (3d Cir. 1999). Two and a half years later, on January 16, 1998, Mr. Haugh filed this petition asserting a col lateral challenge to his firearms conviction under Bailey . In May 1998, the Supreme Court resolved a split in the circuits and held that a defendant may raise a Baileyclaim on collateral review. See Bousley v. United States , 523 U.S. 614, 621 (1998). The limitation period provided by AEDPA for section 2255 motions states in pertinent part that it shall run from the latest of , inter alia, “the date on which the right asserted was initially recognized by the Supr eme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review .” 28 U.S.C. § 2255(3) (emphasis added). In Bailey , the Supreme Court recognized for the first time a defendant’s r ight to be free of criminal liability under section 924(c)(1) for conduct that had previo usly supported a conviction in virtually every circuit, thus recognizing a new rig ht within the meaning of section 2255(3). See United States v. Valdez , 195 F.3d 544, 547 (9th Cir. 1999); Lloyd, 188 F.3d at 187. Not until its decision in Bousley , however, did the Court make its decision retroactively applicable to cases on colla teral appeal. The one-year limitation period provided by section 2255(3) there fore arguably did not begin to run3 In our circuit, on the other hand, we held in 1996 in United States v.

Barnhardt , 93 F.3d 706 (10th Cir. 1996), that Baileyretroactively applies to cases on collateral review. -5- on collateral Baileyclaims until the decision in Bousleywas handed down on May 18, 1998. See Valdez , 195 F.3d at 548; Lloyd, 188 F.3d at 188. There appears to be a split in the circuits over wh ether the one-year limitation period in section 2255(3) begins to run when the Supreme Court holds a new right applicable on collateral review, or whether retroac tive application by the Court of Appeals for the circuit encompassing the district c ourt in which a prisoner was sentenced would suffice. See Lloyd, 188 F.3d at 188 & n.10 (citing cases). We need not address this issue, however, because the First Circuit, the circuit in which Mr. Haugh was sentenced, had not taken a position on th e retroactivity of Baileyprior to the Court’s decision in Bousley

. See United States v. Joseph , 109 F.3d 34, 36 & n.2 (1st Cir. 1997) (noting issue but not reaching it). 3 Thus, because Mr. Haugh filed the instant proceeding before Bousleywas decided, if his pro se petition is properly construed as seeking relief under section 2255 it m ight well be considered timely in the First Circuit. See Valdez , 195 F.3d at 548 (section 2255 motion filed before Bousleytimely). We thus agree with the district court th at section 2255 is the appropriate remedy, but disagree with the court’s c onclusion that the action would necessarily have been time-barred in the First Circ uit had it been filed there instead of in Kansas, which is in the Tenth Circuit.4 We note that a motion to transfer is not necessary in view of the

mandatory language of section 1631. See Hays v. Postmaster Gen. of United States , 868 F.2d 328, 331 (9th Cir. 1989). -6- II Because a section 2255 motion must be brought in th e district in which the defendant was sentenced, the district court here la cked jurisdiction. Jurisdictional defects that arise when a suit is filed in the wron g federal district may be cured by transfer under the federal transfer statute, 28 U.S .C. § 1631, which requires a court to transfer such an action “if the transfer is in the interest of justice.” Federal Deposit Ins. Corp. v. McGlamery , 74 F.3d 218, 220 (10th Cir. 1996). Mr. Haugh wou ld now be time-barred if we upheld the dismissal and he ha d to file a new proceeding in the sentencing court in Massachusetts, a factor which t he courts have recognized as militating in favor of transferring in the interest of justice. 4 See Coleman v. United States , 106 F.3d 339, 341 (10th Cir. 1997) (factors warra nting transfer include finding that new action would be barred as untimely and fac t that original action filed in good faith). See also Phillips v. Seiter , 173 F.3d 609, 610 (7th Cir. 1999). Nonetheless, as the court recognized in Phillips , a court is authorized to consider the consequence s of a transfer by taking “a peek at the merits” to avoi d raising false hopes and wasting judicial resources that would result from transferr ing a case which is clearly doomed. Id. at 610-11. As we discuss briefly below, our quicklook at the merits here convinces us that Mr. Haugh’s request for relief is without merit.-7-

Mr. Haugh seeks relief under Baileyfrom his guilty plea to using or carrying a firearm in relation to a crime of violence in viola tion of 18 U.S.C. § 924(c). He argues that his conduct was no longer criminal afte r the Court in Bailey set out the elements of using a firearm under section 924(c). The record contains no evidence that Mr. Haugh brought a direct appeal challenging the sufficiency of the evidence under Bailey , or that he has shown cause and prejudice for his failure to do so. Consequently, he would only be entitled to relief b y showing that he is actually innocent. See Bousley , 523 U.S. at 623. Significantly, the sentencing judge made clear at M r. Haugh’s plea proceeding that he could be found guilty of aiding and abettin g the use or carrying of a firearm. The government set out as the basis for the charge the following facts, which Mr. Haugh agreed were true. Mr. Haugh, another person, and the victim were together in a parked car when, on a prearranged signal, Mr. Hau gh turned up the car radio as the other person shot the victim with a revolver and ki lled him instantly. Mr. Haugh and the other person put the body of the victim in the trunk of the car and later dumped the body in a parking lot. The conduct by the third person is indisputably suf ficient to establish active deployment of a firearm so as to satisfy the use re quirement of section 924(c) under Bailey , and it is also clear he carried a firearm within the meaning of the statute. Mr. Haugh’s conduct is sufficient to establish his liab ility as an aider and abetter of the5 “Baileydid not alter the required elements for aiding and abetting.”

Badamo v. United States , No. 99-1081, 1999 WL 1338076, at **1 (1st Cir. Se pt. 16, 1999) (citing Wright v. United States , 139 F.3d 551, 552 (7th Cir. 1998)). -8- third person by his knowing facilitation of the use and carrying of the firearm in connection with the murder. See Santoro v. United States , 187 F.3d 14, 17 (1st Cir. 1999) (rejecting section 2255 challenge to convicti on for aiding and abetting the use of a firearm in light of Baileyand Bousley ). 5 Accordingly, Mr. Haugh’s argument under Baileyis without merit and transfer of the proceeding wo uld therefore not be in the interest of justice. We AFFIRM the judgment of the district court dismissing the action for lack of jurisdiction.