### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 09/10/98 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 97-5029

________________________ D. C. Docket Nos. 93-8049-cr-JAG 96-8593-cv-JAG JOHN DAVID JONES, Petitioner-Appellant,

versus UNITED STATES OF AMERICA, Respondent-Appellee.

________________________ Appeal from the United States District Court for the Southern District of Florida

_________________________ (September 10, 1998)
Before HATCHETT, Chief Judge, BLACK, Circuit Judge, and KRAVITCH, Senior Circuit Judge. BLACK, Circuit Judge:

In July 1994, Appellant J ohn David Jones pled guilty to one count of possessing cocaine with the intent to distribute it, in violation of 21 U.S .C. § 841(a)(1), and one count of using and carrying one or more firearms during and in relation to a drug1 The Government contends that the poli ce found a semi-automatic handgun in Appellant’s car. Appellant contested that alleged fact at oral argument. The district court will have to address this and other factual disputes on remand. 2 trafficking offense, in violation of 18 U.S.C . § 924(c). Appellant did not file a direct appeal. After the Supreme Court issued its decision in Bailey v. United States , 516 U.S. 137, 116 S. Ct. 501 (1995), Appellant f iled a § 2255 petition, seeking relief with respect to his 18 U.S.C. § 924(c) conviction. The district court denied the petition and Appellant filed this appeal. We hold that Appellant procedurally defaulted his claims by failing to raise them on direct appeal, but remand for a hearing on the issue of whether Appellant is actually innocent of th e § 924(c) charge and therefore can avoid the procedural bar. I. BACKGROUND On March 16, 1993, police officers obtai ned a warrant to search Appellant's residence. Later that day, officers stopped Appellant as he was driving away from his residence. 1 The police then brought Appellant back to the house and executed the search warrant. The officers found 210.88 grams of crack cocaine, 314.36 grams of powder cocaine, $154,506 in cash, a number of handguns, a rifle, and a shotgun. Appellant was indicted on three counts: Count I charged possession of cocaine with the intent to distribute it, in viola tion of 21 U.S.C. § 841(a)(1); Count II charged knowingly using and carrying one or more firearms during and in relation to the drug3 felony set forth in Count I, in violati on of 18 U.S.C. § 924(c); and Count III charged illegal possession of firearms by a convict ed felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A superseding indictment added a criminal forfeiture count, but left the first th ree counts unchanged. On Ju ly 20, 1994, Appellant pled guilty to Counts I and II of the supersedi ng indictment. On April 28, 1995, Appellant was sentenced to 262 months’ incarcerati on on Count I and 60 months’ incarceration on Count II, to run consecutively. The district court also imposed five years’ supervised release and ordered Appellant to pay $200 in special assessments. Appellant did not challenge his convictions on direct appeal. On December 6, 1995, the Supreme Court issued its opinion in Bailey v. United States , in which it defined “use” under 18 U.S .C. § 924(c) more narrowly than this Court had defined thatterm at the time of Appellant 's plea. 516 U.S. at 150, 116 S. Ct. at 509. On August 20, 1996, Appella nt moved pursuant to 28 U.S.C. § 2255 to vacate his § 924(c) conviction, contending that the evidence does not support the conviction and that his plea was not voluntary. He further asserted that his plea and his failure to take a direct appeal do not bar him from challengi ng his conviction in a § 2255 petition because he can establish cause and prejudice and because he is actually innocent. Without holding a hearing, the district court denied the petition. Appellant filed this appeal.2 The petitioner in Bousleyfiled his § 2255 petition before the Supreme Court issued its decision in Bailey . He claimed that there was an insuffici ent factual basis for his guilty plea. The district court ordered that the petition be dismisse d and he filed an appeal. While the appeal was pending, the Supreme Court issued its decision in Bailey . Before the Court of Appeals, the petitioner argued that his plea was involuntary because he was misinformed as to the elements of § 924(c) and that he did not waiv e the claim by pleading guilty. The Court of Appeals affirmed the district court’s dismissal of the petition. Bousley , __ U.S. at __, 118 S. Ct. at 1608 (citation omitted). 4 II. ANALYSIS The issue we address in this case is whether Appellant’s failure to challenge his § 924(c) conviction on direct appeal bars him from doing so in a § 2255 petition. At oral argument, the parties agreed th at the Supreme Court’s decision in Bousley v. United States , __ U.S. __, 118 S. Ct. 1604 (1998), resolv es the issue and that this case should be remanded for a hearing on whethe r Appellant is actually innocent of the § 924(c) charge and therefore can avoid the procedural bar to his claims. We agree. The facts in Bousleyclosely resemble the facts in this case. In Bousley , the Supreme Court addressed the issue of wh ether a petitioner who pled guilty in 1990 to a § 924(c) charge, and did not contest the validity of his plea on direct appeal, was barred from seeking relief from his plea under the Supreme Court’s decision in Bailey

. 2 The Court began by stating that petiti oner’s plea would not be valid if neither he, his counsel, nor the court correctly understood the elements of the § 924(c) charge. Id. at __, 118 S. Ct. at 1609. The Court e xplained, however, that the petitioner had procedurally defaulted his claim by fa iling to raise it on direct appeal. Id. at __, 1185 S. Ct. at 1610. Petitioner could avoid the pr ocedural bar by showing either “cause and actual prejudice or that he is actually innocent.” Id. at __, 118 S. Ct. at 1611 (internal quotations and citations omitted). Applying Bousleyto this case, Appellant has pr ocedurally defaulted his claims and can raise them in a § 2255 petition only if he shows cause and actual prejudice or actual innocence. Reading Appellant’s br ief broadly, Appellant argues that he satisfies the cause and actual prejudice standard because (1) no one had any idea that “use” under § 924(c) would be radicallyredefined by the Supreme Court in Bailey , and (2) it would have been futile to raise his arguments on direct appeal based on this Circuit’s precedent at the time of his guilty plea. The Supreme Court squarely rejected both of these arguments in Bousley

. Id. at __, 118 S. Ct. at 1611. In addressing the first argument, the Supreme Court observed that “the Federal Reporters were replete with cases involving challe nges to the notion that ‘use’ is synonymous with mere ‘possession.’” Id. (citation omitted). The Court held that “[e]ven were we to conclude that petitioner’s counsel was unaware at the time that petitioner’s plea colloquy was constitutionally deficient, where the basis of a claim is available, and other defense counsel have pe rceived and litigated that cl aim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default.” Id. at __, 118 S. Ct. at 1611 n.2 (internal punctuation and6 citation omitted). As to the second argument, the Supreme Court explained that “futility cannot constitute cause if it mean s simply that a claim was unacceptable to that particular court at that particular time.” Id. at __, 118 S. Ct. at 1611 (quoting Engle v. Isaac , 456 U.S. 107, 130 n.35, 102 S. Ct. 1558, 1573 n.35 (1982)) (internal quotations omitted). We therefore must conclude that the reasons proffered by Appellant do not establish cause for his failure to challenge his § 924(c) conviction on direct appeal. Appellant may still be able to avoid the pr ocedural bar if he can show that the alleged error “has probably resulted inthe conviction of one who is actually innocent.” Id. (quoting Murray v. Carrier , 477 U.S. 478, 496, 106 S. Ct. 2639, 2649 (1986)) (internal quotations omitted). “[ A]ctual innocence means factual innocence, not mere legal insufficiency.” Id. (internal quotations and citation omitted). Accordingly, Appellant must establish that “in light of all the evidence, it is more likely than not that no reasonable ju ror would have convicted him.” Id. (internal quotations and citation omitted). The district court did not address Appellant’s actual innocence claim and the present record does not clearly resolve the i ssue. We therefore remand for the district court to hold a hearing to determine the validity of Appellant’s actual innocence claim. The Government will be permitte d to introduce admissible evidence at the7 hearing beyond the evidence it pres ented at the plea colloquy. Id. at __, 118 S. Ct. at 1611-12. Moreover, in assessi ng Appellant’s claim of actual innocence, the district court should heed the Supreme Court’s in struction that “[i]n cases where the Government has foregone more serious ch arges in the course of plea bargaining, petitioner’s showing of actual innocence mu st also extend to those charges.” Id. at __, 118 S. Ct. at 1612. If Appellant satisfi es the requirements for showing actual innocence, “he will then be entitled to have his defaulted claim[s] . . . considered on [their] merits.” Id. at __, 118 S. Ct. at 1612. III. CONCLUSION Although Appellant cannot avoid the proce dural bar to his challenge to his § 924(c) conviction under the cause and actual prejudice standard, the record is insufficient for us to determine whether he can avoid the bar under the actual innocence standard. Accordingly, we remand the case for the district court to hold a hearing to determine whether Appellant is actually innocent of the § 924(c) charge and therefore can avoid the procedural bar. VACATED and REMANDED.