                                                                           [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 97-5029                        FILED
                           ________________________
                                               U.S. COURT OF APPEALS
                 D. C. Docket Nos. 93-8049-cr-JAGELEVENTH CIRCUIT
                                   96-8593-cv-JAG     09/10/98
                                                  THOMAS K. KAHN
JOHN DAVID JONES,                                      CLERK

                                                           Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.


                           ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                        _________________________

                              (September 10, 1998)


Before HATCHETT, Chief Judge, BLACK, Circuit Judge, and KRAVITCH,
     Senior Circuit Judge.

BLACK, Circuit Judge:




      In July 1994, Appellant John David Jones pled guilty to one count of possessing

cocaine with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), and one

count of using and carrying one or more firearms during and in relation to a drug
trafficking offense, in violation of 18 U.S.C. § 924(c). Appellant did not file a direct

appeal. After the Supreme Court issued its decision in Bailey v. United States, 516

U.S. 137, 116 S. Ct. 501 (1995), Appellant filed a § 2255 petition, seeking relief with

respect to his 18 U.S.C. § 924(c) conviction. The district court denied the petition and

Appellant filed this appeal. We hold that Appellant procedurally defaulted his claims

by failing to raise them on direct appeal, but remand for a hearing on the issue of

whether Appellant is actually innocent of the § 924(c) charge and therefore can avoid

the procedural bar.

                                     I. BACKGROUND

       On March 16, 1993, police officers obtained a warrant to search Appellant's

residence. Later that day, officers stopped Appellant as he was driving away from his

residence.1 The police then brought Appellant back to the house and executed the

search warrant. The officers found 210.88 grams of crack cocaine, 314.36 grams of

powder cocaine, $154,506 in cash, a number of handguns, a rifle, and a shotgun.

       Appellant was indicted on three counts: Count I charged possession of cocaine

with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1); Count II charged

knowingly using and carrying one or more firearms during and in relation to the drug


       1
         The Government contends that the police found a semi-automatic handgun in Appellant’s
car. Appellant contested that alleged fact at oral argument. The district court will have to address
this and other factual disputes on remand.

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felony set forth in Count I, in violation of 18 U.S.C. § 924(c); and Count III charged

illegal possession of firearms by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). A superseding indictment added a criminal forfeiture

count, but left the first three counts unchanged. On July 20, 1994, Appellant pled

guilty to Counts I and II of the superseding indictment. On April 28, 1995, Appellant

was sentenced to 262 months’ incarceration on Count I and 60 months’ incarceration

on Count II, to run consecutively. The district court also imposed five years’

supervised release and ordered Appellant to pay $200 in special assessments.

Appellant did not challenge his convictions on direct appeal.

      On December 6, 1995, the Supreme Court issued its opinion in Bailey v. United

States, in which it defined “use” under 18 U.S.C. § 924(c) more narrowly than this

Court had defined that term at the time of Appellant's plea. 516 U.S. at 150, 116 S.

Ct. at 509. On August 20, 1996, Appellant moved pursuant to 28 U.S.C. § 2255 to

vacate his § 924(c) conviction, contending that the evidence does not support the

conviction and that his plea was not voluntary. He further asserted that his plea and

his failure to take a direct appeal do not bar him from challenging his conviction in a

§ 2255 petition because he can establish cause and prejudice and because he is

actually innocent. Without holding a hearing, the district court denied the petition.

Appellant filed this appeal.


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                                        II. ANALYSIS

       The issue we address in this case is whether Appellant’s failure to challenge his

§ 924(c) conviction on direct appeal bars him from doing so in a § 2255 petition. At

oral argument, the parties agreed that the Supreme Court’s decision in Bousley v.

United States, __ U.S. __, 118 S. Ct. 1604 (1998), resolves the issue and that this case

should be remanded for a hearing on whether Appellant is actually innocent of the

§ 924(c) charge and therefore can avoid the procedural bar to his claims. We agree.

       The facts in Bousley closely resemble the facts in this case. In Bousley, the

Supreme Court addressed the issue of whether a petitioner who pled guilty in 1990 to

a § 924(c) charge, and did not contest the validity of his plea on direct appeal, was

barred from seeking relief from his plea under the Supreme Court’s decision in

Bailey.2 The Court began by stating that petitioner’s plea would not be valid if neither

he, his counsel, nor the court correctly understood the elements of the § 924(c) charge.

Id. at __, 118 S. Ct. at 1609. The Court explained, however, that the petitioner had

procedurally defaulted his claim by failing to raise it on direct appeal. Id. at __, 118


       2
          The petitioner in Bousley filed his § 2255 petition before the Supreme Court issued its
decision in Bailey. He claimed that there was an insufficient factual basis for his guilty plea. The
district court ordered that the petition be dismissed and he filed an appeal. While the appeal was
pending, the Supreme Court issued its decision in Bailey. Before the Court of Appeals, the
petitioner argued that his plea was involuntary because he was misinformed as to the elements of
§ 924(c) and that he did not waive the claim by pleading guilty. The Court of Appeals affirmed the
district court’s dismissal of the petition. Bousley, __ U.S. at __, 118 S. Ct. at 1608 (citation
omitted).

                                                 4
S. Ct. at 1610. Petitioner could avoid the procedural bar by showing either “cause and

actual prejudice or that he is actually innocent.” Id. at __, 118 S. Ct. at 1611 (internal

quotations and citations omitted).

      Applying Bousley to this case, Appellant has procedurally defaulted his claims

and can raise them in a § 2255 petition only if he shows cause and actual prejudice or

actual innocence. Reading Appellant’s brief broadly, Appellant argues that he

satisfies the cause and actual prejudice standard because (1) no one had any idea that

“use” under § 924(c) would be radically redefined by the Supreme Court in Bailey,

and (2) it would have been futile to raise his arguments on direct appeal based on this

Circuit’s precedent at the time of his guilty plea. The Supreme Court squarely

rejected both of these arguments in Bousley. Id. at __, 118 S. Ct. at 1611. In

addressing the first argument, the Supreme Court observed that “the Federal Reporters

were replete with cases involving challenges to the notion that ‘use’ is synonymous

with mere ‘possession.’” Id. (citation omitted). The Court held that “[e]ven were we

to conclude that petitioner’s counsel was unaware at the time that petitioner’s plea

colloquy was constitutionally deficient, where the basis of a claim is available, and

other defense counsel have perceived and litigated that claim, the demands of comity

and finality counsel against labeling alleged unawareness of the objection as cause for

a procedural default.” Id. at __, 118 S. Ct. at 1611 n.2 (internal punctuation and


                                            5
citation omitted). As to the second argument, the Supreme Court explained that

“futility cannot constitute cause if it means simply that a claim was unacceptable to

that particular court at that particular time.” Id. at __, 118 S. Ct. at 1611 (quoting

Engle v. Isaac, 456 U.S. 107, 130 n.35, 102 S. Ct. 1558, 1573 n.35 (1982)) (internal

quotations omitted). We therefore must conclude that the reasons proffered by

Appellant do not establish cause for his failure to challenge his § 924(c) conviction

on direct appeal.

      Appellant may still be able to avoid the procedural bar if he can show that the

alleged error “has probably resulted in the conviction of one who is actually

innocent.” Id. (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649

(1986)) (internal quotations omitted). “[A]ctual innocence means factual innocence,

not mere legal insufficiency.”      Id. (internal quotations and citation omitted).

Accordingly, Appellant must establish that “in light of all the evidence, it is more

likely than not that no reasonable juror would have convicted him.” Id. (internal

quotations and citation omitted).

      The district court did not address Appellant’s actual innocence claim and the

present record does not clearly resolve the issue. We therefore remand for the district

court to hold a hearing to determine the validity of Appellant’s actual innocence

claim. The Government will be permitted to introduce admissible evidence at the


                                          6
hearing beyond the evidence it presented at the plea colloquy. Id. at __, 118 S. Ct. at

1611-12. Moreover, in assessing Appellant’s claim of actual innocence, the district

court should heed the Supreme Court’s instruction that “[i]n cases where the

Government has foregone more serious charges in the course of plea bargaining,

petitioner’s showing of actual innocence must also extend to those charges.” Id. at __,

118 S. Ct. at 1612. If Appellant satisfies the requirements for showing actual

innocence, “he will then be entitled to have his defaulted claim[s] . . . considered on

[their] merits.” Id. at __, 118 S. Ct. at 1612.

                                 III. CONCLUSION

      Although Appellant cannot avoid the procedural bar to his challenge to his

§ 924(c) conviction under the cause and actual prejudice standard, the record is

insufficient for us to determine whether he can avoid the bar under the actual

innocence standard. Accordingly, we remand the case for the district court to hold a

hearing to determine whether Appellant is actually innocent of the § 924(c) charge and

therefore can avoid the procedural bar.

      VACATED and REMANDED.




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