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Smith v. United States


October 28, 1998


The opinion of the court was delivered by: Irenas, District Judge



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 scheme and insisted that Wilcox be present during the transaction to verify that the drugs were available.

Shortly after the conclusion of the meeting, while the [petitioner] and Wilcox were in the [petitioner's] car, the [petitioner] received a call on his cellular telephone from the CI. The [petitioner] stated that he had the rest of the money and was ready to do the deal. The petitioner and Wilcox proceeded to the warehouse. (citations to record omitted).

Upon arrival, the [petitioner] and Wilcox waited for the arrival of the pick-up truck with the cocaine. When the truck arrived, the [petitioner] displayed to Wilcox the contents of one of the kilogram packages. Wilcox telephoned Bowens to inform him that he had seen the cocaine. Wilcox left the warehouse in the [petitioner's] car to pick up Bowens and the money. Bowens and Wilcox then returned to the warehouse with the cash. Bowens advised co-defendant David Campbell to wait around the corner from the warehouse to receive the cocaine from Bowens. (citations to record omitted).

At the warehouse area, Bowens remained in the car while Wilcox went inside and spoke to the [petitioner], who instructed Wilcox to retrieve the money. As Wilcox was removing the bag of cash from Bowens' lap, he saw that Bowens had a gun. Wilcox brought the money into the warehouse, and handed it to the [petitioner], who in turn gave it to the CI. The [petitioner] removed from the pick-up truck two packages of cocaine and gave them to Wilcox, who secreted the packages under his clothing. Wilcox then walked outside to deliver the cocaine to Bowens. As Wilcox opened the passenger door of the vehicle (where Bowens was seated), Wilcox observed the approach of several law enforcement officers. (citations to record omitted).

Bowens jumped out of the car and started to run. He was chased by FBI Agent Fassanella. The [petitioner] also fled the scene, while Wilcox returned to the warehouse in an attempt to dispose of the cocaine. During the chase, Bowens removed a semi-automatic pistol from his waistband, and dropped it to the ground, along with a set of keys. Bowens eventually was able to escape the area in a van driven by David Campbell, who was waiting nearby.

Law enforcement officers fired five shots at the van in an unsuccessful attempt to stop it. However, the [petitioner] and Hall were apprehended later that evening. Bowens remained a fugitive until March 17, 1991, when he was arrested by a Metro-Dade police detective at a ticket counter inside a Greyhound Bus terminal. (citations to record omitted). [John Smith] v. United States, Civ. A. Nos. 90-732-CR-Marcus, 96-543- CIV-Marcus, Report and Recommendation (Feb. 27, 1997) (Snow, M.J.).

The magistrate judge determined that, because petitioner's co-defendant, Bowens, had been convicted of unlawful "use" and "carrying" of a firearm in the commission of a drug crime, petitioner properly had been found liable for Bowens' acts. Under Pinkerton v. U.S., 328 U.S. 640 (1946), the magistrate found that Bowens' acts were reasonably foreseeable and in furtherance of the conspiracy. Contrary to petitioner's assertion that he was never charged with "carrying," the magistrate judge specifically noted that, pursuant to the second superceding indictment, petitioner had been charged and convicted of conspiracy under the "carry" prong of 18 U.S.C. § 924(c). Because Bowens had clearly "carried" the firearm, (it was actually physically on his person as he attempted to flee), the magistrate judge found that petitioner's Bailey claim failed. She held that he was properly convicted under the "carry" prong of 18 U.S.C. § 924(c) and recommended that the district judge deny his § 2255 petition. United States District Judge Stanley Marcus adopted the magistrate's report and recommendation and dismissed petitioner's motion to vacate the sentence pursuant to § 2255.

After his first § 2255 petition was dismissed, petitioner persisted with his Bailey claim and filed a second § 2255 petition, along with an evidentiary motion. On July 31, 1997, pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (codified in relevant part at 28 U.S.C. § 2255), the magistrate judge ordered petitioner to apply to the Eleventh Circuit Court of Appeals for the authorization required to file a successive § 2255 petition. Under the AEDPA, which amended § 2255, 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 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.

Lacking either newly discovered evidence or the adoption of a new rule of constitutional law, petitioner's chances of receiving permission were slim.

The magistrate informed petitioner that, if the required authorization was not received by October 31, 1997, the second § 2255 motion and the evidentiary hearing motion would be denied. The Eleventh Circuit did not grant petitioner permission to file a successive § 2255 motion. Thus, consistent with the court's earlier directions, on November 10, 1997, the court dismissed petitioner's second § 2255 motion for failure to obtain the Court of Appeals' permission to file it.


Having exhausted his remedies available under § 2255, petitioner now seeks to file a petition under 28 U.S.C. § 2241, once again requesting that his sentence be set aside on the basis of Bailey. He relies on a recent Third Circuit case, In Re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), a case involving a challenge to a conviction under 18 U.S.C. § 924(c) based on Bailey's new definition of "use." Dorsainvil held that under certain narrowly defined conditions a petitioner should be allowed to file a petition under § 2241 where his § 2255 remedy had become "inadequate or ineffective." *fn1

In Dorsainvil petitioner had already filed a § 2255 petition prior to the Supreme Court decision in Bailey, and upon learning of that decision sought to file another. The Third Circuit found § 2255 to be "inadequate or ineffective" because, after the amendments of the AEDPA, a successive § 2255 petition is allowed only if it contained (1) newly discovered evidence or (2) a new rule of constitutional law. As the petitioner in Dorsainvil had not presented any newly discovered evidence and Bailey was based on a statutory interpretation of § 924(c), not a newly enunciated rule of constitutional law, a successive § 2255 remedy was not legally available. In this unusual circumstance, the Third Circuit permitted recourse to a petition under § 2241.

Petitioner's reliance on Dorsainvil is misplaced. In Dorsainvil, the sole reason the appellate court characterized the prisoner's second § 2255 motion as a § 2241 petition was because Bailey's intervening change in the substantive statutory law did not meet the new AEDPA exceptions for filing a successive § 2255 petition, making any remedy under § 2255 "ineffective or inadequate." An intervening change in constitutional law (or newly discovered evidence, which was not at issue in Dorsainvil) would have afforded the petitioner an opportunity under § 2255 to apply to the Court of Appeals for permission to file a successive § 2255 petition. A change in statutory law, Bailey's new definition of "use" under 18 U.S.C. § 924(c), did not. Thus, the Third Circuit noted that, without relief under § 2241, the petitioner would not have "an opportunity to challenge his conviction as inconsistent with the Supreme Court's interpretation" of 18 U.S.C. § 924(c), and would therefore be punished "for an act that the law does not make criminal," a fundamental miscarriage of justice. Id. at 251.

The Dorsainvil Court recognized the limited application of its holding: "[u]nder narrow circumstances, a Defendant in Dorsainvil's uncommon situation may resort to the writ of habeas corpus codified under 28 U.S.C. § 2241." Id. at 248. Petitioner's situation is clearly distinguishable as he has already asserted a Bailey claim in both his first and second § 2255 petitions. In deciding the first § 2255 motion, the magistrate's report and recommendation addressed the merits of his Bailey claim and found that he was properly convicted under the "carry" prong of 18 U.S.C. § 924(c). Dorsainvil provides relief to a petitioner who might otherwise be barred from receiving the benefit of newly announced legal principles by a strict application of the AEDPA. It does not permit a litigant unhappy with the result of his first § 2255 petition a second bite at the apple merely by placing a § 2241 caption on a new pleading.

In our view the petition presently before us is nothing but a successive § 2255 application. As petitioner has already unsuccessfully raised his Bailey claim to the sentencing court twice, he can not now attempt to circumvent the determination that he was properly convicted and sentenced under the "carry" prong of 18 U.S.C. § 924(c). The court's denial of his § 2255 motion on the merits does not automatically make § 2255 "ineffective or inadequate," and petitioner has raised no other ground for finding it necessary to allow him to proceed on the twice-rejected Bailey theory under § 2241. Thus, his habeas corpus petition must be denied.


We will deny petitioner's § 2241 petition for a writ of habeas corpus because it is effectively identical to a previously filed § 2255 petition and is thus barred by the AEDPA. We will also deny his request for an evidentiary hearing as moot. An appropriate order will issue.


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