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. e du/thir dc ir c uit_1997/168Filed 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 PetitionerElizabeth 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 2 8 U.S.C. §§ 2255 and 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act, seek ing
certification to file a second § 2255 motion to vac ate, set aside, or correct his sentence. After Dorsainvil'sf irst petition was denied on the merits, the Supreme Cour t 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 m ay collaterally attack his § 924(c)(1) conviction in t he district

court.

I.

FACTS AND PROCEDURAL HISTORY

Following a jury trial, Ocsulis Dorsainvil was conv icted in

the United States District Court for the Middle Dis trict of Pennsylvania of conspiracy to distribute cocaine ba se, 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 governm ent

introduced evidence that Dorsainvil and his co-defe ndant, Anel Louis, had arranged to sell some crack cocaine to an undercover policeman. When the police arrived, Dors ainvil was in the driver's seat of a pickup truck from whi ch the drugs were to be sold. There was a gun in an open p aper bag next to the driver's seat, in the center of the pickup truck. It was purchased by and registered to Dorsai nvil. There was testimony from police officers that, as t he 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 movement s as if he were reaching for something in front of hi m. 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 t hat the gun was related in any way to the drug transaction, stating that he bought it for protection while living in Fl orida. 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 gro unds of ineffective assistance of counsel and double jeopar dy. His

pro se petition was denied on the merits by orders dated November 30, 1993, March 2, 1994, and April 22, 199 4, 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 n ine 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 b ecause of changes effected in § 2255 procedure by the recentl y enacted Antiterrorism and Effective Death Penalty A ct of 1996, Pub.L. 104-132, 110 Stat. 1214 (the "AEDPA") (codified in relevant part at 28 U.S.C. § 2255), an d that only this court could give the necessary certificate. Do rsainvil

then filed a motion with this court for certificati on 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.

3II.

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 c ontain:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would b e sufficient to establish by clear and convincing evi dence
that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroact ive 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 . . . d rug 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 evide nce to show that he actively employed a firearm in relatio n to a drug trafficking crime and that he is therefore imp risoned for conduct that the Supreme Court has determined i s 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 t he merits. Because this is Dorsainvil's second § 2255 petition, we may grant Dorsainvil's motion for a certificate only if

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

gatekeeping provision. Dorsainvil argues that he sa tisfies both prongs.1 We consider his contentions in turn.

Dorsainvil argues that his application contains the requisite "newly discovered evidence." This content ion is plainly incorrect. Dorsainvil has not presented any "newly discovered" facts that would bear on his guilt. Ins tead he argues that the Bailey decision places established facts in a different light so that they are as consistent wi th 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 wa s 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 "newl y discovered evidence." We view the first prong of th e amended § 2255 as directed to certification of a su ccessive petition based on a change in the underlying factua l scenario, and conclude that Dorsainvil has alleged no such change.

It is the second and alternative prong of the amend ed § 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." Fiv e courts of appeals have already determined that Bailey did not establish a new rule of constitutional law, but sim ply 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 inappl icable because it cannot be applied retroactively to second motions m ade 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., dissen ting), and hence we have no occasion to discuss the Supreme Court's opi nion in Lindh v. Murphy , 1997 WL 338568, at *3 (U.S. June 23, 1997).

5F.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 implicate d, because "[i]ncarceration for acts that do not const itute a crime is patently offensive to the Constitution." A ppellant's Brief at 16. Dorsainvil appears to conclude that th erefore Bailey embodies an implicit rule of constitutional law.

Dorsainvil points to no legislative history to supp ort such a reading, which would be contrary to the plain lan guage 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. Becau se 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 cas es 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 bee n convicted and imprisoned for conduct that is not cr iminal cannot be heard by the district court, then § 2255 as amended by the AEDPA is unconstitutional as a viola tion of

the Due Process Clause of the Fifth Amendment or th e Suspension Clause of Article I, section 9 of the Constitution. Were no other avenue of judicial revi ew available for a party who claims that s/he is factu ally or

6legally innocent as a result of a previously unavai lable

statutory interpretation, we would be faced with a thorny constitutional issue. Dorsainvil argues, however, t hat there are a number of other avenues for relief, and proff ers in addition to the writ of habeas corpus available und er 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 poten tial alternatives, because we conclude that, under narro w circumstances, a petitioner in Dorsainvil's uncommo n situation may resort to the writ of habeas corpus c odified
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 r espective jurisdictions" to prisoners "in custody in violatio n of the
Constitution or laws or treaties of the United Stat es." 28 U.S.C. § 2241(a),(c)(3). In Felker v. Turpin , 116 S.Ct. 2333 (1996), a case involving a state prisoner, the Supr eme Court considered the extent to which the AEDPA circumscribed its own power to issue writs of habea s corpus. The Court held that although section 106(b) (3)(E) of the AEDPA, codified in 28 U.S.C. § 2244(b)(3)(E), p recludes the Supreme Court from reviewing by appeal or petit ion for certiorari a judgment on an application for leave t o file a second habeas petition in district court, the Act d oes 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 no t expressly referred to the Court's longstanding auth ority 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 co urt held that the AEDPA provision barring judicial review of certain deport ation orders did not repeal the habeas corpus jurisdiction that it has p ursuant to § 2241, and in so holding it relied upon the same language quot ed in the text. See

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

7Ever since 1948, when Congress enacted § 2255 to al low

for collateral review of the sentences of federal p risoners in the trial court, that section, rather than § 2241, has been the usual avenue for federal prisoners seeking to c hallenge the legality of their confinement. The addition of § 2255 was deemed necessary because the judiciary was experien cing practical problems in light of the obligation for f ederal prisoners to file their § 2241 claims in the distri ct where they were confined. This requirement meant that "th e few District Courts in whose territorial jurisdiction m ajor federal penal institutions are located were require d to handle an inordinate number of habeas corpus action s far from the scene of the facts, the homes of the witne sses and the records of the sentencing court solely because of the fortuitous concentration of federal prisoners withi n the district." United States v. Hayman , 342 U.S. 205, 213-14 (1952).

With the enactment of § 2255, much of the collatera l attack by federal prisoners has been routed to the jurisdiction of the trial court. Congress's interes t in cabining those claims lays behind its enactment of Title I of the AEDPA. Significantly, however, the AEDPA did no t amend the "safety-valve" clause in § 2255 that refe rs to the power of the federal courts to grant writs of habea s 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 circumsta nces:

An application for a writ of habeas corpus in behal f 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 fa iled 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 m otion is inadequate or ineffective to test the legality o f 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

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

206. Hayman, the petitioner, had filed a motion und er § 2255 claiming ineffective assistance of counsel. The district court, after a hearing without notice to o r the presence of Hayman, denied the motion. The court of appeals, questioning the adequacy and constitutiona lity of § 2255, directed that the motion be dismissed so th at Hayman could proceed by a writ of habeas corpus und er § 2241. In overturning that decision, the Supreme C ourt 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 "i nadequate
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 2 255 procedure is shown to be `inadequate or ineffective ,' the Section provides that the habeas corpus remedy shal l remain open to afford the necessary hearing." Id . at 223. The Court concluded that "[u]nder such circumstance s, [it need not] reach constitutional questions." Id

.

The "inadequate or ineffective" language as a safet y-valve was also emphasized by the Court in Swain v. Pressl ey , 430 U.S. 372 (1977), where the petitioner challenge d the constitutionality of a provision of the District of Columbia Code that channeled prisoners' collateral attacks t o 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 w rit 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 a t 24 (emphasis in original). Although it concedes that t here is but sparse authority on the issue, it relies on leg islative history showing that the momentum for § 2255 emanat ed

9from the Judicial Conference of the United States w hich

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 pr isoner showed that " `it appears that it has not been or w ill not be practicable to determine his rights to discharge fr om custody on [a § 2255 motion] because of his inabili ty 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. (jurisdi ctional bill)).

Congress did not adopt the language of the Conferen ce's bill, and the statute as enacted contained the "ina dequate 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 i ntend "to impinge upon prisoners' rights of collateral at tack upon their convictions," id. at 219, but solely "to minimize the difficulties encountered in habeas hearings by affo rding the same right in another and more convenient forum." I d.

It is noteworthy that when the Supreme Court in Swa in turned to the issue of the adequacy of the new prov ision in the District of Columbia Code, which is virtually i dentical to § 2255, it did not limit its consideration to "prac tical considerations," as the government argues here, but inquired whether the availability of a collateral r emedy 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 con sidered 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" la nguage than the government's narrow interpretation proffer ed here. Indeed, we are hard put to understand precisely the type of situation which the government believes fits within the "inadequate or ineffective" language.

10Dorsainvil argues that the safety-valve provision o f

§ 2255 covers his situation because he seeks to cha llenge his conviction on a second § 2255 petition based on an intervening decision by the Supreme Court. A simila r case "involv[ing] the availability of collateral relief from a federal criminal conviction based upon an intervening chang e in substantive law" came before the Supreme Court in D avis

v. United States , 417 U.S. 333, 334 (1974). In that case, the Court stated that a Supreme Court decision interpre ting 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 re medy afforded by the writ of habeas corpus is apparent." Id. at 346 (internal quotations omitted). The Court held t hat "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 misca rriage 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. Addo nizio , 442 U.S. 178, 186-87 (1979) (discussing Davis and observing that a refusal to have vacated his senten ce "would surely have been a `complete miscarriage of justice,' since the conviction and sentence were no longer la wful").

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 Dorsai nvil's motion before us only because he has brought his claim for relief on a second § 2255 motion. In the earlier pa rt 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 inconsis tent 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 a n act that the law does not make criminal, thereby warranting resort to the collateral remedy afforded by § 2255, it mus t follow

11that it is the same "complete miscarriage of justic e" when

the AEDPA amendment to § 2255 makes that collateral remedy unavailable. In that unusual circumstance, t he remedy afforded by § 2255 is "inadequate or ineffec tive to test the legality of [Dorsainvil's] detention."

There is no reason why § 2241 would not be availabl e under these circumstances, provided of course that Dorsainvil could make the showing necessary to invo ke 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 § 225 5 was intended to afford federal prisoners a remedy ident ical 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 co nvicted 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 Congres s's intent in amending § 2255. However, allowing someon e 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 de viation from our prior precedent strictly construing the applicability of the safety-valve language in § 225 5. 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 ren der § 2255 remedy "inadequate or ineffective"); Litteri o v. Parker , 369 F.2d 395, 396 (3d Cir. 1966) (per curiam ) (sentencing court's prior denial of identical claims does not r ender § 2255 remedy "inadequate or ineffective"); Mucheri no 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 sen tencing court and district of confinement, nor denial of re lief by sentencing court, nor denial of leave to appeal fro m sentencing court in forma pauperis, render § 2255 r emedy "inadequate or ineffective," nor do any "unusual circumstances" exist); United States ex rel. Leguil lou v.
Davis , 212 F.2d 681, 684 (3d Cir. 1954) (remedy by § 225 5 motion not "inadequate or ineffective" if district court "could have entertained the prisoner's claim, inquired ful ly 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 doe s not show that § 2255 is an inadequate remedy).

The government has not suggested that Dorsainvil ha s abused the writ, the principal situation that the A EDPA
was intended to eliminate and for which the Court i n Felker chose to be "inform[ed]" by the gatekeeping provisi ons of § 2255. 116 S. Ct. at 2339. He is in an unusual sit uation because Bailey was not yet decided at the time of his first § 2255 motion. Our holding that in this circumstanc e § 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, i n which the "inadequate or ineffective" language of section 225 5 may be applicable.

C.

The question before us is not whether Dorsainvil is actually innocent of violating § 924(c)(1), but rat her, as in

Davis , 417 U.S. at 347, whether his claim that he is bei ng detained for conduct that has subsequently been ren dered non-criminal by an intervening Supreme Court decisi on is cognizable in a district court. The government does not argue that Dorsainvil "used" a firearm within the m eaning 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 innoc ent." There may be some force in the government's argumen t, which has convinced our concurring colleague. Judge Stapleton relies for precedent on this court's rece nt 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 Dorsain vil, was guilty under the "carries" language of § 924(c)(1) penalizing anyone who "during and in relation to any . . . dru g trafficking crime . . . uses or carries a firearm." However, in Eyer , unlike this case, the facts showed that the handg un "was conveyed with the cocaine to the purchaser's apartment," id. at 476, which patentlyfits the definition ofcarrying. Dorsainvil argues that "transportation" o f a

firearm is not the same as "carrying" it for purpos es of this statute. Moreover, Dorsainvil may argue that the ju ry was not fully charged on the "carry" aspect to§ 924(c)( 1), and we have found that "carry" appears to have been ref erred 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 pres ented to
a district court as that court can view the full re cord of the evidence presented, the arguments made at trial, an d the charge. It is sufficient for our purposes in declin ing 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 no t 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 c annot conclude that Dorsainvil has failed to present at l east a sufficiently colorable claim based on Bailey for review under
§ 2241.

III.

CONCLUSION

We adhere to our prior order denying Dorsainvil's m otion for certification to file a second petition pursuan t to § 2255. Our denial is without prejudice to Dorsainvil's rig ht 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 c onfinement.

14STAPLETON, Circuit Judge , Concurring:

As I read the opinion of the court, my colleagues a nd I agree on the following propositions:

1. Dorsainvil has failed to meet the gatekeeping cr iteria of the AEDPA applicable to successive petitions und er § 2255.

2. Section 2255 is not "inadequate or ineffective t o test the legality of detention" merely because access to a federal court under that section is barred by the gatekeepi ng 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 te st the legality of detention" in a case where the gatekeep ing provisions bar a successive petitioner who can alle ge actual
innocence of the crime of which he was convicted an d who, at the time of his earlier petition(s), could not d emonstrate that innocence. Accordingly, § 2255 is "inadequate or ineffective" in a situation in which a successive p etitioner can allege both that the Supreme Court, since his l ast petition, has interpreted the statute under which h e was convicted in a new way and that his conduct was law ful under the statute as subsequently interpreted.

4. Although the gatekeeping provisions applicable t o successive § 2255 petitions must "inform" a court i n 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 peti tioner can allege both that the Supreme Court, since his l ast petition, has interpreted the statute under which h e was convicted in a new way and that his conduct was law ful under the statute as so interpreted.

5. Denial of Dorsainvil's application for permissio n to file a successive § 2255 petition because he has fa iled to satisfy the gatekeeping provisions does not violate the Due Process Clause or the Suspension of the Writ Clause

.

15As I read the court's opinion, my colleagues and I do

differ on whether it may be possible in this partic ular case for Dorsainvil to gain access to a federal court un der § 2241. They suggest that a district court, after v iewing "the full record of the evidence presented, the argument s made at trial, and the charge" (Slip Op. at 14), might p roperly decide to entertain a § 2241 petition despite the f act that Dorsainvil has not satisfied the gatekeeping provis ions of the AEDPA applicable to successive § 2255 petitions . I disagree because it is clear from the record in thi s case that Dorsainvil cannot allege facts which will support h is claim of actual innocence, and therefore the unavailabili ty 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, t he 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 tri al and the jury's finding that he used or carried a gun "d uring and in relation to a drug trafficking crime" make it im possible for him to allege that his conduct was not prohibit ed by the statute he was convicted of violating.

The uncontradicted record establishes that Dorsainv il drove the truck, that he was apprehended in the dri ver's seat with cocaine in his pants, that there was a lo aded gun with a live round in the chamber in an open paper b ag also containing his wallet and personal papers, that the bag was located between the front seats within his reach, a nd that the firearm was purchased by and registered to him.

Dorsainvil did not contest these facts at trial. No r did he contest the fact that he had placed the gun in the truck. He

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1. At oral argument Dorsainvil's counsel questioned the adequacy of the charge on "carrying," pointing out that more emphas is was placed on "using." Dorsainvil did not object at trial to the charge on this ground. More importantly, he cannot succeed at this stage i n the game merely by pointing to a deficiency in a jury instruction. He must allege facts that affirmatively demonstrate innocence. This he cannot do.

16denied only that the gun's presence bore any relati on to the

drug transaction. Based on facts that Dorsainvil do es not now dispute, and after being fully instructed on th e "in relation to" element of the offense charged, the ju ry found Dorsainvil guilty as charged.

While Dorsainvil stresses that the trial court gave a more expansive definition of "use" than would be warrant ed after Bailey , he ignores the fact that he "carried" the gun in relation to the drug transaction, even if he did no t also "use" it in relation to that transaction. Indeed, o n virtually the same facts, this court has held that the defend ant "carried" a gun in relation to a drug offense. Unit ed States v. Eyer , 113 F.3d 470 (3d Cir. 1997). Despite the court's suggestion to the contrary, there is no legally rel evant distinction between Dorsainvil's case and Eyer

.

Police arrested the defendant in Eyer while he was making a delivery of cocaine and seized his automob ile. They discovered "a fully loaded Colt .380 caliber s emiautomatic hand gun with a live round in its chamber

located in the console between its front seats alon g with

some cocaine." Id. at 471. After defendant-Eyer's § 924(c)(1) conviction at a bench trial, he filed a § 2255 peti tion predicated on the decision in Bailey . He asserted that he was tried "based on the expansive definition of `us e' 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 transact ion." Eyer , 113 F.3d at 475. Eyer also insisted that the facts in his case could not justify a conviction under the c arry prong. The district court rejected both arguments a nd 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 wa s carrying the firearm.... [T]he handgun was loaded a nd was in a console between the two front seats, and w as 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

17relation 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 petitione r alleges facts that demonstrate actual innocence, and no miscarriage of justice will result from denial of t he § 2255 certification. Accordingly, alternative access to a federal court under § 2241 is not necessary to the constitu tionality 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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