The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
Presently before this Court is petitioner, Pedro Camilo's, ("Camilo" or "Petitioner") application for habeas corpus relief under 28 U.S.C. § 2241. Camilo challenges his conviction under 18 U.S.C. 924(c)(1) *fn1 for the "use" of a firearm during a drug trafficking crime, alleging that he is being wrongly incarcerated in light of the United States Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). *fn2 For the reasons set forth below, this Court will deny Petitioner's application for habeas corpus relief.
On December 7, 1988, police officers and agents from the Drug Enforcement Agency executed a search warrant at a first floor apartment in the Bronx, New York. The warrant was issued after an undercover investigation revealed continuing drug sales out of apartment 2F, by Camilo and three others, Ramon Salazar ("Salazar"), Manuel DeJesus ("DeJesus"), and Juan Ramon Rodriguez ("Rodriguez"). During the execution of the warrant, Rodriguez, the lookout for the drug operation, fired a .38 caliber silver plated revolver into the wall of apartment 2F.
By telephone, police subsequently obtained a second warrant to search apartment 3D, a second floor apartment in the same building. Apartment 3D was identified by the undercover officer who had conducted the investigation as the source of the drugs actually sold in apartment 2F. In apartment 3D the police found and arrested both Camilo and Salazar. Salazar was arrested in the living room of apartment 3D, directly in front of a sofa on which there was a loaded, black, .45 caliber semi-automatic pistol. Camilo was arrested in the bathroom of apartment 3D, away from the .45 caliber pistol. Crack cocaine and cocaine powder, cutting agents, a scale, drug records, and more than $17,000 in cash were also found in apartment 3D. According to the Government, drugs were not sold directly out of apartment 3D.
Petitioner was named in four counts of a nine count indictment. Three counts charged offenses related to illegal narcotics. The remaining count charged that "during and in relation to a crime of violence and a drug trafficking . . . [Camilo] did use and carry firearms." See Indictment, Count 7. This count references not only § 924(c)(1), but also the aiding and abetting provisions of 18 U.S.C. § 2.
At trial, the Government relied upon the testimony of Rodriguez, who chose to plead guilty and cooperate rather than proceed to trial along with Camilo, Salazar and DeJesus. Rodriguez testified that, as the lookout for the drug operation, he was given the silver .38 caliber revolver by Camilo to "fire a warning shot" if anyone tried to disturb the drug sales. Rodriguez also testified that he "always saw" Camilo with a gun that he believed to be a black .45 caliber semi-automatic pistol. The Government alleges that this pistol was the same pistol found on the sofa in Apartment 3D. The trial court also heard testimony from the undercover officer who conducted the "buys" leading to the warrant. He testified that both Rodriguez and DeJesus handled the .38 caliber revolver during the drug sales.
There seems little doubt that in firing the warning shot Rodriguez "used" the .38 caliber handgun during and in relation to a drug crime. Since petitioner furnished the weapon to Rodriguez and was charged with aiding and abetting under 18 U.S.C. § 2, the government might have relied on those facts to obtain a conviction on the seventh count of the indictment. However, in its bill of particulars, the Government argued that Camilo used the .45 caliber semi-automatic pistol found in apartment 3D in furtherance of the drug trafficking operation. *fn3 At the time of Camilo's 1989 trial, the government's position was consistent with prevailing Second Circuit interpretations of the word "use" in prosecutions under § 924(c)(1). See United States v. Santos, 64 F.3d 41, 45 (2d Cir. 1995), vacated and remanded in light of Bailey v. United States, 516 U.S. 1156 (1996).
The jury found Salazar, DeJesus and Camilo guilty on all the drug-trafficking and firearms counts. On September 22, 1989, Camilo was sentenced to ten years imprisonment on the conspiracy and substantive narcotics charges, to run concurrently, and five years imprisonment on the § 924(c) firearms charge, to run consecutively. Camilo's conviction and sentence were affirmed by the Second Circuit on August 16, 1990.
In April, 1992, Camilo filed his first habeas corpus petition in the Southern District of New York under 28 U.S.C. § 2255 in which he attacked his sentence under the Sentencing Guidelines. *fn4 This petition was dismissed. In October, 1996, Camilo filed a second petition under § 2255 alleging that, in light of Bailey v. United States, 516 U.S. 137 (1995), his conviction under Count Seven was no longer valid.
In Bailey, the United States Supreme Court held, contrary to the prevailing authority among the Circuits, that "use" of a firearm under § 924(c)(1) required more than mere possession. See Bailey, 516 U.S. at 143-44. Instead, the Court held that § 924(c)(1) requires "active employment" of a firearm in order to sustain a conviction. Id. at 148. The Court stated that "active employment" includes "brandishing, displaying, bartering, striking with, [or] firing or attempting to fire." Id. Merely having a firearm stored or kept near drugs or drug proceeds is not enough to sustain a conviction under the "use" prong of § 924(c)(1). Id. Additionally, having a firearm "at the ready" is not enough to warrant punishment under § 924(c)(1). Id. at 149-50. *fn5
The District Court transferred Camilo's petition to the Second Circuit to obtain the necessary certification to file a second or successive petition under AEDPA. See 28 U.S.C. §§ 2244(b)(1)(3); 2255. On January 14, 1997, the Second Circuit denied Camilo's application but stayed the final dismissal of his petition pending the outcome of Triestman v. United States, 124 F.3d 361 (2d Cir. 1997). In Treistman, the petitioner sought certification from the Second Circuit in order to proceed with a successive § 2255 petition for post-conviction relief as required by AEDPA. Treistman wanted to challenge his § 924(c)(1) conviction in light of Bailey. The Second Circuit held that, although AEDPA did foreclose the availability of post-conviction relief under § 2255, petitioner could file a habeas corpus petition under § 2241 in order to bring his Bailey claim. Id. at 377-78. Triestman was decided on August 28, 1997, and on the same day Camilo's § 2255 petition was dismissed as successive. The ...