                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            MAY 25 2000
                                     TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 99-4169
          v.                                                 D. Utah
 RONALD KIRK MERKELEY,                            (D.C. No. 96-CV-1022-K)

               Defendant-Appellant.


                            ORDER AND JUDGMENT           *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.           **




      In 1992, Petitioner Ronald Kirk Merkeley pleaded guilty to possession of a

controlled substance with intent to distribute, in violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(D), and “use and carry” of firearms, in violation of 18




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is, therefore, ordered submitted without oral argument.
U.S.C. § 924(c)(1). In exchange for the guilty plea the government dismissed six

other counts contained in the indictment.

       Mr. Merkeley filed a pro se motion to vacate or set aside his sentence

pursuant to 28 U.S.C. § 2255, alleging that his conviction under 18 U.S.C. §

924(c)(1) is invalid in light of the Supreme Court’s holding in     Bailey v. United

States , 516 U.S. 137 (1995). In    Bailey , the Supreme Court narrowed the proper

construction of “use” of a firearm under § 924(c)(1). Mr. Merkeley contends his

guilty plea was not knowing and voluntary because he entered it prior to      Bailey .

       The district court, adopting the recommendation and report of the

magistrate judge, denied the petition for habeas relief. The court found Mr.

Merkeley’s claim was procedurally barred and he could not establish either 1)

cause and prejudice, or 2) actual innocence. As to cause and prejudice, the

district court applied   Bousley v. United States , 118 S. Ct. 1604 (1998).   Bousley

expressly rejected the contention that the unavailability of the Supreme Court’s

opinion in Bailey established cause for defaulting a claim for a narrower

construction of “use” under § 924(c)(1).     See id. at 1611. The district court

therefore concluded Mr. Merkeley had not established cause for his failure to

raise the “use” issue prior to his § 2255 petition.

       The district court then noted that Mr. Merkeley is required to establish

actual innocence to both the “use” and “carry” prongs under § 924(c)(1),       and any


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other charges the government did not pursue as a result of the plea negotiations.

See id. at 1611-12. The court found Mr. Merkeley could not establish actual

innocence on the “carry” prong of § 924(c)(1), or on the other charges brought

against him that the government dropped pursuant to the plea agreement.

       The legal analysis and findings of the district court are thorough and sound.

Accordingly, we AFFIRM denial of the petition for habeas for substantially the

same reasons as the district court.   1




                                          Entered for the Court,



                                          Robert H. Henry
                                          Circuit Judge




       Mr. Merkeley also contends he is entitled to an evidentiary hearing on his
       1

claim. Under 28 U.S.C. § 2255, the district court is required to conduct an
evidentiary hearing “[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” Here, we believe the
record conclusively shows Mr. Merkeley is not entitled to any relief under § 2255.




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