1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-23-1997

In Re: Dorsainvil

Precedential or Non-Precedential:

Docket 96-8074

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Recommended Citation

"In Re: Dorsainvil" (1997). 1997 Decisions. Paper 168.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/168
Filed July 23, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-8074 

IN RE: OCSULIS DORSAINVIL, 

Petitioner

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

Argued May 1, 1997 

Before: SLOVITER, Chief Judge, 

STAPLETON and COWEN, Circuit Judges

(Opinion filed July 23, 1997) 

James D. Crawford (Argued) 

Wendy Bettlestone 

Joseph T. Lukens 

Schnader Harrison Segal & Lewis 

Philadelphia, PA 19l03 

 Attorneys for Petitioner 
Elizabeth D. Collery (Argued) 

 United States Department of 

 Justice 

 Appellate Section, Criminal Division 

Washington, D.C. 20044 

David M. Barasch 

 United States Attorney, 

 Middle District of Pennsylvania 

Dennis C. Pfannenschmidt 

 Assistant United States Attorney 

 Middle District of Pennsylvania 

 Attorneys for Respondent 

OPINION OF THE COURT 

SLOVITER, Chief Judge. 

Ocsulis Dorsainvil has filed a motion pursuant to 28 

U.S.C. §§ 2255 and 2244(b)(3)(A), as amended by the

Antiterrorism and Effective Death Penalty Act, seeking 

certification to file a second § 2255 motion to vacate, set 

aside, or correct his sentence. After Dorsainvil'sfirst 

petition was denied on the merits, the Supreme Court 

issued its opinion in Bailey v. United States, 116 S.Ct. 501 

(1995). Dorsainvil argues that Bailey renders his weapons 

conviction under 18 U.S.C. § 924(c)(1) invalid and asks that 

this court certify his second petition so that he may 

collaterally attack his § 924(c)(1) conviction in the district 

court. 

I. 

FACTS AND PROCEDURAL HISTORY

Following a jury trial, Ocsulis Dorsainvil was convicted in 

the United States District Court for the Middle District of 

Pennsylvania of conspiracy to distribute cocaine base, 

distribution of cocaine base, and use of a firearm during 

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

 2 
§ 924(c)(1). In the course of the trial the government 

introduced evidence that Dorsainvil and his co-defendant, 

Anel Louis, had arranged to sell some crack cocaine to an 

undercover policeman. When the police arrived, Dorsainvil 

was in the driver's seat of a pickup truck from which the 

drugs were to be sold. There was a gun in an open paper 

bag next to the driver's seat, in the center of the pickup 

truck. It was purchased by and registered to Dorsainvil. 

There was testimony from police officers that, as the officers 

moved in for the arrest after the buyer left to get the funds 

to complete the drug sale, Dorsainvil was fumbling with his 

pants, where cocaine was found, and making movements 

as if he were reaching for something in front of him. 

Dorsainvil did not touch the gun, and was arrested without 

incident. His wallet and personal papers were found in the 

bag with the gun after his arrest. He testified at trial and 

admitted that he possessed the gun, but he denied that the 

gun was related in any way to the drug transaction, stating 

that he bought it for protection while living in Florida. The 

jury convicted him on all counts. 

Dorsainvil did not file a direct appeal, but sought

collateral relief under 28 U.S.C. § 2255 on the grounds of 

ineffective assistance of counsel and double jeopardy. His 

pro se petition was denied on the merits by orders dated 

November 30, 1993, March 2, 1994, and April 22, 1994, 

and there was no appeal. On December 6, 1995, the 

Supreme Court decided Bailey v. United States, 116 S.Ct. 

501 (1995), construing § 924(c)(1). Approximately nine 

months later, Dorsainvil filed a second pro se § 2255 

petition in the district court. The district court ruled that it 

did not have jurisdiction to address the petition because of 

changes effected in § 2255 procedure by the recently 

enacted Antiterrorism and Effective Death Penalty Act of 

1996, Pub.L. 104-132, 110 Stat. 1214 (the "AEDPA") 

(codified in relevant part at 28 U.S.C. § 2255), and that only 

this court could give the necessary certificate. Dorsainvil 

then filed a motion with this court for certification of his 

second petition for relief under § 2255. We denied his 

motion, but stayed our order, appointed Dorsainvil counsel, 

and invited counsel to brief a series of questions concerning 

the AEDPA's newly enacted gatekeeping provisions. 

 3 
II. 

DISCUSSION

A.

Under the AEDPA, before a successive § 2255 motion 

may be considered by the district court, it must be certified 

by a three judge panel of the court of appeals to contain: 

(1) newly discovered evidence that, if proven and 

viewed in light of the evidence as a whole, would be 

sufficient to establish by clear and convincing evidence 

that no reasonable factfinder would have found the 

movant guilty of the offense; or 

(2) a new rule of constitutional law, made retroactive 

to cases on collateral review by the Supreme Court,

that was previously unavailable. 

28 U.S.C. § 2255. 

Dorsainvil had been convicted, inter alia, for using and 

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

language of that section, which imposes punishment upon 

a person who "during and in relation to any . . . drug 

trafficking crime . . . uses or carries a firearm," was 

construed in Bailey, where the Supreme Court held that a 

defendant could not be convicted of using a firearm under 

that statute unless the government proved that the 

defendant "actively employed the firearm during and in 

relation to the predicate crime." 116 S. Ct. at 509. 

Dorsainvil claims that there was insufficient evidence to 

show that he actively employed a firearm in relation to a 

drug trafficking crime and that he is therefore imprisoned 

for conduct that the Supreme Court has determined is not 

illegal. 

In the posture of the matter before us, our task is not to 

determine if, in fact, Dorsainvil used a firearm in a manner 

that satisfied the Supreme Court's Bailey interpretation but 

whether the AEDPA precludes a court from reaching the 

merits. Because this is Dorsainvil's second § 2255 petition, 

we may grant Dorsainvil's motion for a certificate only if 

 4 
Dorsainvil meets one of the two prongs of § 2255's 

gatekeeping provision. Dorsainvil argues that he satisfies 

both prongs.1 We consider his contentions in turn. 

Dorsainvil argues that his application contains the

requisite "newly discovered evidence." This contention is 

plainly incorrect. Dorsainvil has not presented any "newly 

discovered" facts that would bear on his guilt. Instead he 

argues that the Bailey decision places established facts in 

a different light so that they are as consistent with 

innocence as they are with guilt. 

We reject this creative interpretation of the plain

language of § 2255(1). If, after the Bailey decision, the 

established facts would not have been sufficient to permit 

a reasonable fact finder to find that Dorsainvil was guilty of 

the use of a gun as proscribed by 18 U.S.C. § 924(c), it is 

only because Bailey changed the interpretation of "use" of 

a firearm by operation of law, not because of "newly 

discovered evidence." We view the first prong of the 

amended § 2255 as directed to certification of a successive 

petition based on a change in the underlying factual 

scenario, and conclude that Dorsainvil has alleged no such 

change. 

It is the second and alternative prong of the amended 

§ 2255 that is directed to certification based on a change in 

the legal scenario. Dorsainvil contends that Bailey

established a "new rule of constitutional law." Five courts of 

appeals have already determined that Bailey did not 

establish a new rule of constitutional law, but simply 

interpreted a substantive criminal statute. See In re Vial,___ 

F.3d ___, 1997 WL 324385, at *3 (4th Cir. June 16, 1997); 

Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 

1997)(per curiam); United States v. Lorentsen, 106 F.3d 278, 

279 (9th Cir. 1997); In re Blackshire, 98 F.3d 1293, 1294 

(11th Cir. 1996)(per curiam); Nunez v. United States, 96 

_________________________________________________________________ 

1. Dorsainvil does not argue that the Act is inapplicable because it 

cannot be applied retroactively to second motions made after its effective 

date if the first motion was made before, see In re Vial, 1997 WL 324385, 

at *6-*7 (4th Cir. June 16, 1997) (Hall, J., dissenting), and hence we 

have no occasion to discuss the Supreme Court's opinion in Lindh v.

Murphy, 1997 WL 338568, at *3 (U.S. June 23, 1997). 

 5 
F.3d 990, 992 (7th Cir. 1996). Dorsainvil counters that 

where a successive petitioner claims that s/he has been 

convicted and punished for conduct that the law no longer 

makes criminal, the Due Process Clause is implicated, 

because "[i]ncarceration for acts that do not constitute a 

crime is patently offensive to the Constitution." Appellant's 

Brief at 16. Dorsainvil appears to conclude that therefore 

Bailey embodies an implicit rule of constitutional law. 

Dorsainvil points to no legislative history to support such 

a reading, which would be contrary to the plain language of 

the statute. Under the statute, it is the "new rule" itself that 

must be one "of constitutional law," not the effect of failing 

to apply that rule to successive petitioners. Because we 

believe it is plain that Bailey is not a "new rule of 

constitutional law," we need not dwell on the fact that when 

the Supreme Court announced its interpretation of 

§ 924(c)(1), it did not make it "retroactive to cases on 

collateral review." See Lorentsen, 106 F.3d at 279; Nunez, 

96 F.3d at 992. The facts that the government has 

conceded that Bailey should be applied retroactively, see

Appellee's Brief at 20, and courts have applied it 

retroactively on collateral review, see, e.g., United States v.

Barnhardt, 93 F.3d 706, 709 (10th Cir. 1996), are 

consistent with viewing Bailey as a substantive statutory 

holding. Were it a constitutional rule, it would be subject to 

the presumption against the retroactive application of new 

rules of constitutional law as set forth in Teague v. Lane, 

489 U.S. 288 (1989). See Barnhardt, 93 F.3d at 709. 

We conclude, therefore, that Dorsainvil has failed to 

satisfy either prong of § 2255 as amended. 

B.

Dorsainvil argues that if his claim that he has been 

convicted and imprisoned for conduct that is not criminal 

cannot be heard by the district court, then § 2255 as 

amended by the AEDPA is unconstitutional as a violation of 

the Due Process Clause of the Fifth Amendment or the 

Suspension Clause of Article I, section 9 of the 

Constitution. Were no other avenue of judicial review 

available for a party who claims that s/he is factually or 

 6 
legally innocent as a result of a previously unavailable 

statutory interpretation, we would be faced with a thorny 

constitutional issue. Dorsainvil argues, however, that there 

are a number of other avenues for relief, and proffers in 

addition to the writ of habeas corpus available under 28 

U.S.C. § 2241, the writ of error coram nobis, the writ of 

audita querela and Rule 60(b) of the Federal Rules of Civil 

Procedure. We need not consider the litany of potential 

alternatives, because we conclude that, under narrow 

circumstances, a petitioner in Dorsainvil's uncommon 

situation may resort to the writ of habeas corpus codified 

under 28 U.S.C. § 2241. 

Section 2241 states that "[w]rits of habeas corpus may be 

granted by the Supreme Court, any justice thereof, the 

district court and any circuit judge within their respective 

jurisdictions" to prisoners "in custody in violation of the 

Constitution or laws or treaties of the United States." 28 

U.S.C. § 2241(a),(c)(3). In Felker v. Turpin, 116 S.Ct. 2333 

(1996), a case involving a state prisoner, the Supreme 

Court considered the extent to which the AEDPA 

circumscribed its own power to issue writs of habeas 

corpus. The Court held that although section 106(b)(3)(E) of 

the AEDPA, codified in 28 U.S.C. § 2244(b)(3)(E), precludes 

the Supreme Court from reviewing by appeal or petition for 

certiorari a judgment on an application for leave to file a 

second habeas petition in district court, the Act does not 

affect the Supreme Court's authority to hear habeas

petitions filed as original matters in that Court. Id. at 2339. 

Reviewing the history of the predecessors of § 2241, the 

Court observed that in the 1996 Act Congress had not 

expressly referred to the Court's longstanding authority to 

entertain a petition for habeas corpus, and stated that 

"[r]epeals by implication are not favored." Id. at 2338. Thus, 

in Felker, as in its decision more than a century earlier in

Ex parte Yerger, 8 Wall. 85, 19 L.Ed. 332 (1869), the Court 

specifically "declin[ed] to find a . . . repeal of § 2241 of Title 

28 . . . by implication." Felker, 116 S.Ct. at 2339.2 

_________________________________________________________________ 

2. We note that in a recent decision, a district court held that the AEDPA 

provision barring judicial review of certain deportation orders did not 

repeal the habeas corpus jurisdiction that it has pursuant to § 2241, and 

in so holding it relied upon the same language quoted in the text. See

Yesil v. Reno, 958 F. Supp. 828, 837 (S.D.N.Y. 1997). 

 7 
Ever since 1948, when Congress enacted § 2255 to allow 

for collateral review of the sentences of federal prisoners in 

the trial court, that section, rather than § 2241, has been 

the usual avenue for federal prisoners seeking to challenge 

the legality of their confinement. The addition of § 2255 was 

deemed necessary because the judiciary was experiencing 

practical problems in light of the obligation for federal 

prisoners to file their § 2241 claims in the district where 

they were confined. This requirement meant that "the few 

District Courts in whose territorial jurisdiction major 

federal penal institutions are located were required to 

handle an inordinate number of habeas corpus actions far 

from the scene of the facts, the homes of the witnesses and 

the records of the sentencing court solely because of the 

fortuitous concentration of federal prisoners within the 

district." United States v. Hayman, 342 U.S. 205, 213-14 

(1952). 

With the enactment of § 2255, much of the collateral 

attack by federal prisoners has been routed to the 

jurisdiction of the trial court. Congress's interest in 

cabining those claims lays behind its enactment of Title I of 

the AEDPA. Significantly, however, the AEDPA did not 

amend the "safety-valve" clause in § 2255 that refers to the 

power of the federal courts to grant writs of habeas corpus 

pursuant to § 2241. 

Indeed, § 2255, even following the recent amendment by 

the AEDPA, specifically allows recourse to original writs of 

habeas corpus, albeit in narrowly defined circumstances: 

An application for a writ of habeas corpus in behalf of 

a prisoner who is authorized to apply for relief by

motion pursuant to this section, shall not be 

entertained 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 also appears that the remedy by motion

is inadequate or ineffective to test the legality of his

detention.

28 U.S.C. § 2255 (emphasis added). 

In Hayman, decided shortly after the enactment of 

§ 2255, the Court considered the effect of the new provision 

 8 
on habeas corpus claims brought under § 2241. 342 U.S. at 

206. Hayman, the petitioner, had filed a motion under 

§ 2255 claiming ineffective assistance of counsel. The 

district court, after a hearing without notice to or the 

presence of Hayman, denied the motion. The court of

appeals, questioning the adequacy and constitutionality of 

§ 2255, directed that the motion be dismissed so that 

Hayman could proceed by a writ of habeas corpus under 

§ 2241. In overturning that decision, the Supreme Court 

noted that because the district court ruling on a § 2255 

motion could compel the production of the prisoner 

confined in another district, § 2255 was neither "inadequate 

nor ineffective." Id. at 222-23. At the same time, it 

confirmed the continued availability of the writ of habeas 

corpus, stating that "in a case where the Section 2255 

procedure is shown to be `inadequate or ineffective,' the 

Section provides that the habeas corpus remedy shall 

remain open to afford the necessary hearing." Id. at 223. 

The Court concluded that "[u]nder such circumstances, [it 

need not] reach constitutional questions." Id. 

The "inadequate or ineffective" language as a safety-valve 

was also emphasized by the Court in Swain v. Pressley, 

430 U.S. 372 (1977), where the petitioner challenged the 

constitutionality of a provision of the District of Columbia 

Code that channeled prisoners' collateral attacks to the 

local Superior Court. The Supreme Court, relying on

Hayman, rejected the contention that the substitution 

constituted a suspension of the Great Writ, stating: "The 

Court implicitly held in Hayman, as we hold in this case, 

that the substitution of a collateral remedy which is neither 

inadequate nor ineffective to test the legality of a person's 

detention does not constitute a suspension of the writ of 

habeas corpus." Id. at 381. 

The government argues that a § 2255 motion is not 

"inadequate or ineffective" to test the legality of Dorsainvil's 

detention because those terms should be limited to 

situations where "practical considerations precluded a 

remedy in the sentencing court." Appellee's Brief at 24 

(emphasis in original). Although it concedes that there is 

but sparse authority on the issue, it relies on legislative 

history showing that the momentum for § 2255 emanated 

 9 
from the Judicial Conference of the United States which 

had recommended two bills, a "procedural bill" and a 

"jurisdictional bill," that were the precursors of § 2255. The 

"jurisdictional bill" would have expressly limited an 

application for writ of habeas corpus unless the prisoner 

showed that " `it appears that it has not been or will not be 

practicable to determine his rights to discharge from 

custody on [a § 2255 motion] because of his inability to be 

present at the hearing on such motion or for other 

reasons.' " Hayman, 342 U.S. at 216 n.23 (quoting 

H.R.4233 and S.1451, 79th Cong., 1st Sess. (jurisdictional 

bill)). 

Congress did not adopt the language of the Conference's 

bill, and the statute as enacted contained the "inadequate 

or ineffective" clause without circumscribing it in the 

manner proposed in the Judicial Conference proposal. 

Nothing in § 2255 itself would limit resort to a § 2241 writ 

of habeas corpus in the manner suggested by the 

government. Although admittedly habeas corpus under

§ 2241 is now reserved for rare cases, the Court in Hayman

stressed that in enacting § 2255 Congress did not intend 

"to impinge upon prisoners' rights of collateral attack upon 

their convictions," id. at 219, but solely "to minimize the 

difficulties encountered in habeas hearings by affording the 

same right in another and more convenient forum." Id.

It is noteworthy that when the Supreme Court in Swain

turned to the issue of the adequacy of the new provision in 

the District of Columbia Code, which is virtually identical to 

§ 2255, it did not limit its consideration to "practical 

considerations," as the government argues here, but

inquired whether the availability of a collateral remedy 

before an Article I court was adequate to test the legality of 

the detention. Swain, 430 U.S. at 382-83. Although it 

rejected the challenge, the fact that the Court considered 

the merits of the adequacy issue when the challenge went 

beyond one limited to a practicality issue suggests a 

broader scope to the "inadequate or ineffective" language 

than the government's narrow interpretation proffered here. 

Indeed, we are hard put to understand precisely the type of 

situation which the government believes fits within the 

"inadequate or ineffective" language. 

 10 
Dorsainvil argues that the safety-valve provision of 

§ 2255 covers his situation because he seeks to challenge 

his conviction on a second § 2255 petition based on an 

intervening decision by the Supreme Court. A similar case 

"involv[ing] the availability of collateral relief from a federal 

criminal conviction based upon an intervening change in 

substantive law" came before the Supreme Court in Davis

v. United States, 417 U.S. 333, 334 (1974). In that case, the 

Court stated that a Supreme Court decision interpreting a 

criminal statute that resulted in the imprisonment of one 

whose conduct was not prohibited by law "presents 

exceptional circumstances where the need for the remedy 

afforded by the writ of habeas corpus is apparent." Id. at 

346 (internal quotations omitted). The Court held that "if 

[petitioner's] contention is well taken, then [his] conviction 

and punishment are for an act that the law does not make 

criminal. There can be no room for doubt that such a 

circumstance inherently results in a complete miscarriage 

of justice and present(s) exceptional circumstances that 

justify collateral relief under § 2255." Id. at 346-47 (internal 

quotations omitted); see also United States v. Addonizio, 

442 U.S. 178, 186-87 (1979) (discussing Davis and 

observing that a refusal to have vacated his sentence 

"would surely have been a `complete miscarriage of justice,' 

since the conviction and sentence were no longer lawful"). 

The decision in Davis that § 2255 was broad enough to 

cover a defendant imprisoned for a crime that an 

intervening decision negates does not govern Dorsainvil's 

motion before us only because he has brought his claim for 

relief on a second § 2255 motion. In the earlier part of this 

opinion, we construed the AEDPA to preclude our 

certification of a second § 2255 motion that relied on the 

intervening decision in Bailey as a basis for certification. 

Thus, Dorsainvil does not have and, because of the 

circumstance that he was convicted for a violation of 

§ 924(c)(1) before the Bailey decision, never had an 

opportunity to challenge his conviction as inconsistent with 

the Supreme Court's interpretation of § 924(c)(1). If, as the 

Supreme Court stated in Davis, it is a "complete 

miscarriage of justice" to punish a defendant for an act that 

the law does not make criminal, thereby warranting resort 

to the collateral remedy afforded by § 2255, it must follow 

 11 
that it is the same "complete miscarriage of justice" when 

the AEDPA amendment to § 2255 makes that collateral

remedy unavailable. In that unusual circumstance, the 

remedy afforded by § 2255 is "inadequate or ineffective to 

test the legality of [Dorsainvil's] detention." 

There is no reason why § 2241 would not be available 

under these circumstances, provided of course that 

Dorsainvil could make the showing necessary to invoke 

habeas relief, an issue for the district court. The coverage 

of the two provisions is not dissimilar. Indeed, in Davis the 

Court stated "[t]hat history makes clear that § 2255 was 

intended to afford federal prisoners a remedy identical in 

scope to federal habeas corpus." Davis, 417 U.S. at 343; 

see also United States v. Anselmi, 207 F.2d 312, 314 (3d 

Cir. 1953) ("[S]ection 2255 . . . afford[s] to a convicted 

federal prisoner a remedy which is the substantial

equivalent of the conventional writ of habeas corpus.") 

(emphasis added). 

We do not suggest that § 2255 would be "inadequate or 

ineffective" so as to enable a second petitioner to invoke 

§ 2241 merely because that petitioner is unable to meet the 

stringent gatekeeping requirements of the amended § 2255. 

Such a holding would effectively eviscerate Congress's 

intent in amending § 2255. However, allowing someone in 

Dorsainvil's unusual position - that of a prisoner who had 

no earlier opportunity to challenge his conviction for a 

crime that an intervening change in substantive law may 

negate, even when the government concedes that such a 

change should be applied retroactively - is hardly likely to 

undermine the gatekeeping provisions of § 2255. 

Nothing in our holding in this case represents a deviation 

from our prior precedent strictly construing the 

applicability of the safety-valve language in § 2255. See

Application of Galante, 437 F.2d 1164, 1165-66 (3d Cir. 

1971) (per curiam) (unfavorable legal standards prevailing in 

circuit where sentencing court located does not render 

§ 2255 remedy "inadequate or ineffective"); Litterio v. Parker, 

369 F.2d 395, 396 (3d Cir. 1966) (per curiam) (sentencing 

court's prior denial of identical claims does not render 

§ 2255 remedy "inadequate or ineffective"); Mucherino v.

Blackwell, 340 F.2d 94, 95 (3d Cir. 1965) (per curiam) 

 12 
(same); Crismond v. Blackwell, 333 F.2d 374, 377 & n.6 (3d 

Cir. 1964) (neither 2,000 mile distance between sentencing 

court and district of confinement, nor denial of relief by 

sentencing court, nor denial of leave to appeal from 

sentencing court in forma pauperis, render § 2255 remedy 

"inadequate or ineffective," nor do any "unusual 

circumstances" exist); United States ex rel. Leguillou v.

Davis, 212 F.2d 681, 684 (3d Cir. 1954) (remedy by § 2255 

motion not "inadequate or ineffective" if district court "could 

have entertained the prisoner's claim, inquired fully into 

the facts and granted the very relief the prisoner is 

seeking"); see also Bradshaw v. Story, 86 F.3d 164, 166 

(10th Cir. 1996) (denial of prior § 2255 motion does not 

show that § 2255 is an inadequate remedy). 

The government has not suggested that Dorsainvil has 

abused the writ, the principal situation that the AEDPA 

was intended to eliminate and for which the Court in Felker

chose to be "inform[ed]" by the gatekeeping provisions of 

§ 2255. 116 S. Ct. at 2339. He is in an unusual situation 

because Bailey was not yet decided at the time of his first 

§ 2255 motion. Our holding that in this circumstance 

§ 2255 is inadequate or ineffective is therefore a narrow 

one. In the posture of the case before us, we need go no 

further to consider the other situations, if any, in which the 

"inadequate or ineffective" language of section 2255 may be 

applicable. 

C.

The question before us is not whether Dorsainvil is

actually innocent of violating § 924(c)(1), but rather, as in 

Davis, 417 U.S. at 347, whether his claim that he is being 

detained for conduct that has subsequently been rendered 

non-criminal by an intervening Supreme Court decision is 

cognizable in a district court. The government does not 

argue that Dorsainvil "used" a firearm within the meaning 

of § 924(c)(1), but instead argues that Dorsainvil was 

"carrying" a firearm within the meaning of§ 924(c)(1), and 

therefore cannot present himself as "actually innocent." 

There may be some force in the government's argument, 

which has convinced our concurring colleague. Judge

Stapleton relies for precedent on this court's recent decision 

 13 

in United States v. Eyer, 113 F.3d 470 (3d Cir. 1997), where 

we held that the defendant, who had a firearm in an

automobile in a position similar to that of Dorsainvil, was 

guilty under the "carries" language of § 924(c)(1) penalizing 

anyone who "during and in relation to any . . . drug 

trafficking crime . . . uses or carries a firearm." However, in 

Eyer, unlike this case, the facts showed that the handgun 

"was conveyed with the cocaine to the purchaser's 

apartment," id. at 476, which patentlyfits the definition of 
carrying. Dorsainvil argues that "transportation" of a 

firearm is not the same as "carrying" it for purposes of this 

statute. Moreover, Dorsainvil may argue that the jury was 

not fully charged on the "carry" aspect to§ 924(c)(1), and 

we have found that "carry" appears to have been referred to 

only summarily in the district court's instructions. 

We offer no opinion on these issues. Unlike our 

concurring colleague, we believe they are best presented to 

a district court as that court can view the full record of the 

evidence presented, the arguments made at trial, and the 

charge. It is sufficient for our purposes in declining to reach 

the constitutional issue raised by Dorsainvil that we have 

concluded that resort to § 2241 is still available in an 

appropriate case, and that Dorsainvil's claim is not so 

devoid of merit that it should be foreclosed by us at this 

stage. The AEDPA has channeled § 2241 petitions to the 

district courts in the first instance. No district court has 

had the opportunity to consider whether, following Bailey, 

Dorsainvil's conduct falls within § 924(c)(1). We cannot 

conclude that Dorsainvil has failed to present at least a 

sufficiently colorable claim based on Bailey for review under 

§ 2241. 

III. 

CONCLUSION

We adhere to our prior order denying Dorsainvil's motion 

for certification to file a second petition pursuant to § 2255. 

Our denial is without prejudice to Dorsainvil's right to file 

a petition for writ of habeas corpus pursuant to 28 U.S.C. 

§ 2241 in a district court in the district of his confinement. 

 14 
STAPLETON, Circuit Judge, Concurring: 

As I read the opinion of the court, my colleagues and I 

agree on the following propositions: 

1. Dorsainvil has failed to meet the gatekeeping criteria 

of the AEDPA applicable to successive petitions under 

§ 2255. 

2. Section 2255 is not "inadequate or ineffective to test 

the legality of detention" merely because access to a federal 

court under that section is barred by the gatekeeping 

provisions. The availability of relief by way of an initial 

petition means that § 2255 is normally adequate and

effective for this purpose even though a successive petition 

would be barred by the gatekeeping provisions. 

3. Section 2255 is "inadequate or ineffective to test the 

legality of detention" in a case where the gatekeeping 

provisions bar a successive petitioner who can allege actual 

innocence of the crime of which he was convicted and who, 

at the time of his earlier petition(s), could not demonstrate 

that innocence. Accordingly, § 2255 is "inadequate or 

ineffective" in a situation in which a successive petitioner 

can allege both that the Supreme Court, since his last 

petition, has interpreted the statute under which he was 

convicted in a new way and that his conduct was lawful 

under the statute as subsequently interpreted. 

4. Although the gatekeeping provisions applicable to 

successive § 2255 petitions must "inform" a court in 

determining whether to entertain a petition under§ 2241, 

cf. Felker v. Turpin, ___ U.S. ___, 116 S. Ct. 2333 (1996) (so 

holding with respect to the gatekeeping provisions 

applicable to successive § 2254 petitions), a court can 

entertain a § 2241 petition where a successive petitioner 

can allege both that the Supreme Court, since his last 

petition, has interpreted the statute under which he was 

convicted in a new way and that his conduct was lawful 

under the statute as so interpreted. 

5. Denial of Dorsainvil's application for permission to 

file a successive § 2255 petition because he has failed to 

satisfy the gatekeeping provisions does not violate the Due 

Process Clause or the Suspension of the Writ Clause. 

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As I read the court's opinion, my colleagues and I do 

differ on whether it may be possible in this particular case 

for Dorsainvil to gain access to a federal court under 

§ 2241. They suggest that a district court, after viewing "the 

full record of the evidence presented, the arguments made 

at trial, and the charge" (Slip Op. at 14), might properly 

decide to entertain a § 2241 petition despite the fact that 

Dorsainvil has not satisfied the gatekeeping provisions of 

the AEDPA applicable to successive § 2255 petitions. I 

disagree because it is clear from the record in this case that 

Dorsainvil cannot allege facts which will support his claim 

of actual innocence, and therefore the unavailability of 

relief under § 2255 does not render that provision 

inadequate or ineffective as to him. 

Dorsainvil was indicted for "knowingly us[ing] and 

carry[ing] ... a firearm during and in relation to ... drug 

trafficking crimes." Superseding Indictment, Count III., 

App. at 36-37. In accordance with the indictment, the court 

charged the jury on "using or carrying afirearm during and 

in relation to a drug trafficking crime." Tr. at 9 (emphasis 

added).1 The undisputed facts from Dorsainvil's trial and 

the jury's finding that he used or carried a gun "during and 

in relation to a drug trafficking crime" make it impossible 

for him to allege that his conduct was not prohibited by the 

statute he was convicted of violating. 

The uncontradicted record establishes that Dorsainvil 

drove the truck, that he was apprehended in the driver's 

seat with cocaine in his pants, that there was a loaded gun 

with a live round in the chamber in an open paper bag also 

containing his wallet and personal papers, that the bag was 

located between the front seats within his reach, and that 

the firearm was purchased by and registered to him.

Dorsainvil did not contest these facts at trial. Nor did he 

contest the fact that he had placed the gun in the truck. He 

_________________________________________________________________ 

1. At oral argument Dorsainvil's counsel questioned the adequacy of the 

charge on "carrying," pointing out that more emphasis was placed on 

"using." Dorsainvil did not object at trial to the charge on this ground. 

More importantly, he cannot succeed at this stage in the game merely by 

pointing to a deficiency in a jury instruction. He must allege facts that 

affirmatively demonstrate innocence. This he cannot do. 

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denied only that the gun's presence bore any relation to the 

drug transaction. Based on facts that Dorsainvil does not 

now dispute, and after being fully instructed on the "in 

relation to" element of the offense charged, the jury found 

Dorsainvil guilty as charged. 

While Dorsainvil stresses that the trial court gave a more 

expansive definition of "use" than would be warranted after 

Bailey, he ignores the fact that he "carried" the gun in 

relation to the drug transaction, even if he did not also 

"use" it in relation to that transaction. Indeed, on virtually 

the same facts, this court has held that the defendant 

"carried" a gun in relation to a drug offense. United States

v. Eyer, 113 F.3d 470 (3d Cir. 1997). Despite the court's 

suggestion to the contrary, there is no legally relevant 

distinction between Dorsainvil's case and Eyer. 

Police arrested the defendant in Eyer while he was 

making a delivery of cocaine and seized his automobile. 

They discovered "a fully loaded Colt .380 caliber semiautomatic hand gun with a live round in its chamber

located in the console between its front seats along with 

some cocaine." Id. at 471. After defendant-Eyer's § 924(c)(1) 

conviction at a bench trial, he filed a § 2255 petition 

predicated on the decision in Bailey. He asserted that he 

was tried "based on the expansive definition of `use' set 

forth in United States v. Theodoropoulus, 866 F.2d 587 (3d 

Cir. 1989), which held that a firearm was `used' if it was 

available for possible use during the drug transaction." 

Eyer, 113 F.3d at 475. Eyer also insisted that the facts in 

his case could not justify a conviction under the carry 

prong. The district court rejected both arguments and we 

affirmed. With respect to Eyer's insistence that he did not 

"carry" the gun, we held: 

[T]he facts here compel the conclusion that Eyer was 

carrying the firearm.... [T]he handgun was loaded and 

was in a console between the two front seats, and was 

conveyed with the cocaine to the purchaser's 

apartment. Eyer's easy access to the handgun and its 

transportation convinces us that he was carrying it. 

Id. at 476 (emphasis added). Dorsainvil, too, had easy

access to a gun while he transported it during and in 

 17 
relation to a drug offense, and these facts compel the 

conclusion that Dorsainvil "carried" the gun. 

In short, this is not a case in which the petitioner alleges 

facts that demonstrate actual innocence, and no 

miscarriage of justice will result from denial of the § 2255 

certification. Accordingly, alternative access to a federal 

court under § 2241 is not necessary to the constitutionality 

of § 2255, and I would not suggest that such access might 

be available. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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