                                  No. 96-3118


Arnold F. Hohn,                              *
                                             *
              Appellant,                     *
                                             *   Appeal from the United States
        v.         *                         District Court for the
                                             *   District of Nebraska.
United States of America,                    *
                                             *        [PUBLISHED]
      Appellee. *




                   Submitted:   September 13, 1996

                       Filed:   November 4, 1996



Before McMILLIAN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


PER CURIAM.

     The petitioner in this case, unsuccessful in his effort to have his
sentence set aside under 28 U.S.C. § 2255, seeks review in this court.
Petitioner's    appeal,    however,   will   not   lie   unless   we   issue   him   a
certificate of appealability, and such a certificate is not available
unless the petitioner makes a "substantial showing of the denial of a
constitutional right."      See 28 U.S.C. § 2253(c)(2).


     The petitioner complained to the district court that at his trial the
jury instructions dealing with what it means to use a firearm under 18
U.S.C. § 924(c)(1) did not conform to the principles outlined in Bailey v.
United States, 116 S. Ct. 501 (1995).          It seems to us that under these
circumstances a certificate cannot issue, because the petitioner is not
making a
constitutional claim:    He is making a claim to a federal statutory right.
Bailey did no more than interpret a statute, and an incorrect application
of a statute by a district court, or any other court, does not violate the
Constitution.   The Constitution does not guarantee that judges will always
be right.   It does guarantee, it is true, that persons accused of crimes
will receive due process; but the petitioner makes no due process claim
with respect to the trial judge's actions, and trial errors hardly ever
rise to the level of a due process violation in any case.


     United States v. Liguori, 438 F.2d 663 (2d Cir. 1971), on which Judge
McMillian relies in his dissenting opinion, is not to the contrary.          The
predicate for that case was that the Supreme Court had on constitutional
grounds invalidated certain statutory presumptions, see id. at 666-67, and
the petitioners were claiming that the statute under which they were
convicted was invalid because it contained an unconstitutional presumption.
See id. at 665.    There is no such claim here.       The petitioner does not
maintain    that   §   924(c)(1)   is    unconstitutional   or   that   it   was
unconstitutionally applied to him.      He maintains only that the statute was
wrongly applied to him.


     For the foregoing reasons, we deny the certificate.


McMILLIAN, Circuit Judge, dissenting.


     Arnold F. Hohn appeals from the district court’s dismissal with
prejudice of his 28 U.S.C. § 2255 motion claiming the benefit of Bailey v.
United States, 116 S. Ct. 501 (1995). Section 102 of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214,
amended 28 U.S.C. § 2253(c) to require a “substantial showing of the denial
of a constitutional right” before a certificate of appealability may issue.
The court denies Hohn a certificate. I must respectfully dissent.




                                        -2-
Background


        After a confidential informer told police Hohn was a high-level
methamphetamine dealer, they investigated and obtained a no-knock warrant.
When the police arrested Hohn in his living room, they found one gram of
methamphetamine in his wallet. They also went to the kitchen where they
found 15.8 grams of methamphetamine, three loaded pistols approximately one
foot from the drug, and another firearm.               In Hohn’s bedroom the police
found 3.1 grams of methamphetamine in a cigarette package and another
loaded pistol approximately two feet from the package. Finally, in another
bedroom they found drug paraphernalia and a gun case with shotguns and
rifles. Cindy Vandry arrived at the house during execution of the warrant.
She had twice purchased methamphetamine from Hohn at his home, and on those
occasions she had observed “a substantial amount of currency in the
bedroom.”


        The government charged Hohn with possession of methamphetamine with
intent to distribute it, using and carrying fifteen firearms in relation
to   the    methamphetamine offense, and being a felon in possession of
firearms.        He   stood   trial,     admitted    possession   of   some   of     the
methamphetamine, admitted he owned the firearms as an avid gunsmith and
hunter, disputed the police version of the location of some of the
firearms, and testified he believed he could legally possess the firearms
because his attorney had told him that his 1974 juvenile conviction for
malicious destruction of property did not count as an adult felony.


        At trial, counsel urged substitution of “for the purpose of” in place
of “available to aid in the commission of” in the verdict director for the
firearms “use” charge. The jury convicted Hohn on all counts. He did not
raise      the   instructional   issue    in   his   pre-Bailey appeal.   This     court
affirmed.        United States v. Hohn, 8 F.3d 1301 (8th Cir. 1993).




                                           -3-
       In his § 2255 motion, Hohn argued: (1) his conduct was not a
violation of 18 U.S.C. § 924(c)(1) as interpreted by Bailey; a fundamental
miscarriage of justice would result unless the court addressed the issue;
(3) he should not be penalized for not raising the issue on direct appeal
because he relied on years of Eighth Circuit precedent; (4) denial of a
remedy would show “a lack of due process in the judicial system,” quoting
United States v. Loschiavo, 531 F.2d 659, 666 (2d Cir. 1976) (affirming
vacation of conviction on change-in-law ground not raised on direct
appeal); and (5) he was prejudiced by the jury instruction that said no
affirmative firearms use was required but that availability of a firearm
was adequate for a guilty verdict.


       The government responded that Bailey did not aid Hohn because
evidence     supported   a   carrying   conviction.     It   admitted   the   verdict
directing instruction was erroneous under Bailey, and Hohn was not carrying
a firearm when officers executed the warrant.         It argued, however, that the
kitchen firearms, “within arm's reach of the methamphetamine,” were in
holsters and supported the inference that at some time Hohn “entered his
residence and placed his belongings, which included the methamphetamine and
firearms onto the counter.” The government concluded it was obvious Hohn
had carried the firearms during his drug trafficking activities, and the
instructional error was harmless.


       In reply, Hohn argued that the instruction was error under Bailey,
citing United States v. Webster, 84 F.3d 1056, 1060, 1065-66 (8th Cir.
1996) (permitting brief on Bailey after initial submission of direct appeal
and reversing because plain error in pre-Bailey jury instruction permitted
conviction for “mere presence and ready availability” of firearm where
defendant admitted purchase of a firearm for his protection). He also urged
that   the    government’s     methamphetamine-within-arm's-reach-of-firearms
argument was insufficient under United States v. White, 81 F.3d 80,




                                         -4-
83 (8th Cir. 1996) (affirming “carrying” conviction on direct appeal and
saying government must prove that the defendant bore the firearm on or
about his person during and in relation to a drug trafficking offenses),
quoting Bailey’s language, “the inert presence of a firearm, without more,
is not enough to trigger § 924(c)(1).”     116 S. Ct. at 508 (discussing
different meanings of “use” - active employment, storage, placement for
active use). He included a copy of Cynthia Vandry’s testimony that she saw
the rifles in the gun case but no handguns when she was at Hohn’s house.


     The district court noted Hohn had not raised the Bailey claim on
direct appeal, found he had waived it, and dismissed the § 2255 motion with
prejudice, quoting United States v. McKinney, 79 F.3d 105 (8th Cir. 1996)
(2-1 decision) (holding Bailey issue waived on direct appeal because
McKinney did not challenge previous cases, object to the instruction, or
argue issue in opening brief).


Discussion


     I dissent because I believe the Due Process Clause of the Fifth
Amendment does not permit federal convictions for conduct that does not
violate a federal statute.1


     Congress must define federal criminal offenses. United States v.
Hudson, 11 U.S. (7 Cranch) 32, 33 (1812). Judicial construction of a
statute “is an authoritative statement of what the statute meant before as
well as after the decision of the case giving rise




      1
       For that reason, I also disagree with the court’s holding
that Bailey challenges cannot be raised in a § 2255 motion after a
plea of guilty. Bousley v. Brooks, No. 95-2687, 1996 WL 560214, at
*3-4 & nn.2-4 (8th Cir. Oct. 3, 1996). The better position is, in
my opinion, United States v. Barnhardt, 93 F.3d 706, 708-09 (10th
Cir. 1996) (applying Bailey retroactively in second § 2255 motion
after defendant pleaded guilty) (collecting Bailey cases).


                                   -5-
to that construction.”   Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-
13 (1994) (Rivers) (footnote omitted).    Under these two principles, courts
have granted post-conviction relief after changes in the law. See, e.g.,
Davis v. United States, 417 U.S. 333, 346-47 (1974) (§ 2255 proper when law
changes so that conviction and punishment are for act the law no longer
makes criminal) (change in interpretation of selective service regulation);
United States v. Dashney, 52 F.3d 298, 299 (10th Cir. 1995) (applying new
interpretation of “financial structuring” offense in § 2255 action after
defendant had served sentence to prevent complete miscarriage of justice);
Dalton v. United States, 862 F.2d 1307, 1310 (8th Cir. 1988) (finding new
interpretation of mail fraud statute applicable but affirming because no
prejudice shown under standard that trial error worked to § 2255 movant’s
“actual and substantial disadvantage, infecting [the] entire trial with
error of constitutional dimensions,” citing United States v. Frady, 456
U.S. 152, 170 (1982) (emphasis in original)); Ingber v. Enzor, 841 F.2d
450, 454-55 (2d Cir. 1988) (applying new interpretation of mail fraud
statute in § 2255 action and excusing failure to raise the claim under
earlier interpretation).


     The   Second   Circuit   invoked   constitutional   principles   when   it
confronted four § 2255 challenges to drug convictions in the wake of the
Supreme Court’s invalidation of statutory presumptions.     The court relied
on


     the simple and universal rule that a judgment in a criminal
     case in which the prosecution has offered and the record
     discloses no proof whatever of various elements of the crime
     charged has a fatal constitutional taint for lack of due
     process of law. . . . We must examine the principles involved
     in the constitutional ruling under consideration and decide
     whether, upon "considerations of convenience, of utility, and
     of the deepest sentiments of justice," the judgments of
     conviction were so "tainted by some fundamental unfairness
     within the orbit of constitutional law" that we cannot allow
     them to stand.




                                    -6-
United States v. Liguori, 438 F.2d 663, 669 (2d Cir. 1971) (internal
citation omitted).


      In post-Bailey § 2255 cases, the issue is not advance notice that
conduct is criminal (the familiar void-for-vagueness claim), but delayed
notice that conduct is not criminal (change-of-law claim under Rivers
rationale). Because Bailey represents such a clear break with precedent
regarding the definition of "use" under § 924(c)(1), Hohn had cause for
failing to appeal the denial of his objection to the verdict director.
United States v. Wiley, 922 F. Supp. 1405, 1411 (D. Minn. 1996) (Magnuson,
C.J.); see also Dyer v. United States, 23 F.3d 1421, 1423-24 (8th Cir.)
(rejecting change of law in another circuit as cause), cert. denied, 115
S. Ct. 136 (1994); Dalton v. United States, 862 F.2d at 1310 (finding cause
after new interpretation of mail fraud statute).


Conclusion


      I conclude that depriving persons of the benefit of the delayed
notice   that   conduct   is   innocent    violates   Due   Process   by   tolerating
convictions for conduct that was never criminal. Under that proposition,
a post-Bailey § 2255 motion presents a constitutional question as required
by   amended    §   2253(c)(2).   I   also   conclude   Hohn’s   case      presents   a
“substantial showing of the denial of a constitutional right.” Accordingly,
I would grant a certificate of appealability.


      A true copy.


             Attest:


                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -7-
