The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
Presently before the Court is petitioner John Smith's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and motion for an evidentiary hearing. Because we find that petitioner has no right to seek relief pursuant to 28 U.S.C. § 2241, we will deny his petition for habeas corpus. Having denied his habeas petition, we will similarly deny his motion for an evidentiary hearing.
On September 26, 1990, petitioner was indicted in the United States District Court for the Southern District of Florida on a series of a charges arising out of a conspiracy to distribute cocaine. Petitioner plead not guilty at the arraignment on September 28, 1990. On October 5, 1990, the government filed a superceding indictment charging petitioner and his co-conspirators with: Count 1, conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846; Count 2, possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count 3, unlawful "use" of a firearm in the commission of a drug crime in violation of 18 U.S.C. § 924(c); and Count 4, escape in violation of 18 U.S.C. § 751(a). At his arraignment on October 16, 1990, petitioner again plead not guilty. The trial started on March 18, 1991, but on March 28, 1991, a mistrial was declared.
Although Section 924(c) is targeted at one who "uses or carries" a firearm, Count 3 of the superceding indictment charged only that petitioner "did knowingly use a firearm. . . ." Smith Pet., Exh. A, at 2. After the mistrial a second superceding indictment was filed on April 26, 1991, in which Count 3 was expanded to include not only a "use" charge, but also a charge of unlawfully "carrying" a firearm during the commission of a drug trafficking crime. Govt. Answer, Exh. 1, at 3.
Petitioner's refusal to concede the addition of the "carry" charge in Count 3 of the second superceding indictment is at the core of his argument. In his initial petition to this Court, Smith alleges that "he was not indicted under the "carry" prong of 924(c) in Count III or anywhere else in his indictment." Smith Pet. at 7. When the government produced the second superceding indictment, petitioner challenged its genuineness and further argued that "[p]petitioner never entered any plea to the `carry charge.' Petitioner was never arrained [sic] before a Judge or Magistrate on the carry charge." Smith Rebuttal to Govt. Answer at 1. In a later filing, petitioner claims that he "was never advised that he had been charged with carrying a firearm under 924(c)." Smith Resp. to Govt. Reply at 1. However, an examination of the court docket belies these assertions. Not only was the second superceding indictment filed on April 26, 1991, but Smith is shown as being arraigned and pleading not guilty on May 3, 1991. Govt. Reply to Smith Rebuttal, "John Smith" Master Docket, Items 94 and 100, Exh. 1, at 8.
On December 3, 1991, after a jury trial based on the second superceding indictment, petitioner was sentenced to 420 months incarceration on Counts 1 and 2 concurrent with each other, 60 months incarceration on Count 4, concurrent with Counts 1 and 2, and 60 months incarceration on Count 3, consecutive to Counts 1, 2, and 4. Petitioner initially appealed his conviction and sentence, but voluntarily dismissed the appeal on August 5, 1992.
After the voluntary dismissal, the sentencing court reduced petitioner's sentences, pursuant to Fed. R. Crim. P. 35(b), because of his substantial assistance in two government criminal investigations. On April 28, 1993, the court reduced the sentences imposed on Counts 1 and 2 to 120 months. On October 6, 1995, the court further reduced the sentences imposed on Counts 1 and 2 to 90 months. However, the court did not reduce the consecutive sentence on Count 3, the charge of "use and carry" of a firearm during the commission of a drug crime pursuant to 18 U.S.C. § 924(c).
In July 1996, petitioner filed a motion in the sentencing court collaterally attacking his sentence pursuant to 28 U.S.C. § 2255. Ignoring the second superceding indictment and its amended Count 3 charge containing indictments under both the "use" and "carry" prongs of 18 U.S.C. § 924(c), petitioner contended that his sentence on Count 3 should be vacated based upon the Supreme Court's interpretation of "use" under 18 U.S.C. § 924(c), in Bailey v. United States, 516 U.S. 137 (1995). In Bailey, the Supreme Court held that, in order to constitute an offense under the "use" prong of § 924(c)(1), there must be evidence of "active employment" of a firearm in the commission of the predicate offense; mere possession of a firearm by a person committing an offense is not sufficient. Id. at 142-43. The Court further held that in order to show evidence of "active employment," the Government must establish that the defendant actively employed the weapon by, e.g., "brandishing, displaying, bartering, striking with, [or] . . . firing or attempting to fire" it. Id. at 148. Although the Bailey Court did not directly address the definition of "carry" under the statute, the Court clearly explained that "use" and "carry" were distinct from each other and different from mere "possession." "[T]he inert presence of a firearm, without more, is not enough to trigger § 924(c)(1)." Id. at 149. See, e.g., United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997) (concluding "that the plain meaning of the term `carry' as used in § 924(c)(1) requires knowing possession and bearing, movement, conveyance, or transportation of the firearm in some manner"). Because the defendant in Bailey had been charged under both the "use" and "carry" prongs of 18 U.S.C. § 924(c), the Court remanded the case to the Court of Appeals to consider upholding the convictions under the "carry" prong. Bailey, 516 U.S. 137.
On February 27, 1997, the magistrate judge filed a report and recommendation on petitioner's § 2255 motion. The judge stated the facts of the case as follows:
The facts presented during the trial reflect that on August 16, 1990, the [petitioner] joined an ongoing conspiracy to import cocaine. Co-defendant Jeffrey Brown took the [petitioner] to an undercover warehouse, where the [petitioner] was introduced to a confidential informant ("CI"), as one who was capable of distributing cocaine in Miami. Subsequently the CI and the [petitioner] exchanged telephone numbers and agreed to continue negotiations. On September 12, 1990, after numerous attempts to negotiate a deal, the [petitioner] and the CI finally agreed that the movant would purchase 80 to 90 kilograms of cocaine at a price of approximately $20,000 per kilogram. The [petitioner] was to make a cash down payment of $100,000, with the balance to be paid after the cocaine had been sold. In response to the CI's demand for a guarantee of payment, the [petitioner] agreed to furnish as collateral jewelry, automobiles, a house and his fish market. (citations to record omitted).
On September 14, 1990, the [petitioner] arrived at the warehouse and was escorted to the garage area where a pick-up truck containing the cocaine was parked. The [petitioner] expressed satisfaction with its quality and stated he would accept the entire shipment. The [petitioner] telephoned co- defendant Samuel Hall, and advised him to bring the money. A few minutes later, Hall arrived carrying two bags containing money and jewelry. The CI examined the contents of the bags and discovered that the [petitioner] had produced only $47,000, instead of the $100,000 which had been agreed upon. The CI refused to complete the deal and returned the money and jewelry to the [petitioner]. The [petitioner] advised the CI that he would return with additional money and left the warehouse with Hall. (citations to record omitted).
On September 18, 1991, a meeting occurred between co-defendant Brian Wilcox, Johnnie Bowens and the [petitioner], at which the [petitioner] told Bowens about his inability to complete the cocaine deal. The petitioner offered to sell two kilograms of cocaine to Bowens at a discounted price in exchange for Bowens' investment in the transaction. Bowens expressed concern that the deal might be a rip off ...