                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                NOV 7 1997
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                    Clerk


 UNITED STATES,

               Plaintiff-Appellee,
                                                     Case No. 96-3428
 v.
                                                     (D.C. 92-40022-01)
 EDMUNDO GALINDO ALVARADO,                           (District of Kansas)

               Defendant-Appellant.



                              ORDER AND JUDGMENT*


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



       Edmundo Galindo Alvarado, appearing pro se and proceeding in forma pauperis,

was convicted of possession of marijuana with intent to distribute under 21 U.S.C. §

841(a)(1), of conspiracy to possess marijuana with intent to distribute under 21 U.S.C. §

846, and of possession of a firearm during a drug trafficking offense under 18 U.S.C. §

924(c)(1).




       *
               This order and judgment is not binding precedent, except under the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.
       Mr. Alvarado’s convictions were affirmed on direct appeal. See United States v.

Alvarado, No. 92-3418, 1994 WL 161347 (10th Cir. Apr. 28, 1994). He subsequently

filed an application for certificate of appealability and a motion to vacate judgment and

sentence of his 924(c)(1) conviction,1 under 28 U.S.C. § 2255, contending this conviction

is invalid pursuant to Bailey v. United States, 116 S. Ct. 501 (1995), which was decided

after we affirmed his conviction. Mr. Alvarado appeals the district court’s denial of

relief. For the reasons stated herein, because Mr. Alvarado cannot make a substantial

showing of the denial of a constitutional right, we affirm the denial of his application for

a certificate of appealability and dismiss the appeal.



                                     BACKGROUND

       In 1992, a Kansas Highway Patrol trooper pulled over Mr. Alvarado and his

passenger, Toribio Olivas for a routine traffic violation. The trooper noticed the

overwhelming odor of air freshener and the extreme nervousness of the occupants. The

trooper asked Mr. Alvarado to step out of the vehicle. Mr. Alvarado informed the trooper

that Mr. Olivas owned the automobile. After citing Mr. Alvarado for driving on a

suspended license, the trooper presented Mr. Olivas with a consent to search form, which

he signed.


       1
         Mr. Alvarado filed his petition and application for a certificate of appealability on
July 3, 1996, after the effective date of the Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996).

                                              2
       The ensuing search revealed a loaded firearm, ammunition, and fifteen kilograms

of marijuana located on a hollowed out portion of the gas tank. When the trooper

discovered the firearm in the split between the passenger and driver section of the front

seat, he asked whose it was. Mr. Alvarado raised his hand and said it was his. The

troopers subsequently transported Mssrs. Alvarado and Olivas to the Franklin County Jail.



                                         DISCUSSION

       In reviewing the denial of a § 2255 motion, we review the district court’s legal

rulings de novo, and its findings of fact for clear error. See United States v. Cox, 83 F.3d

336, 338 (10th Cir. 1996). In this § 2255 appeal, Mr. Alvarado challenges his conviction

under count three of the indictment which charged that he “knowingly used and carried a

firearm . . . during and in relation to a drug trafficking crime . . . .” Rec. vol. I, doc 3 at 2

(emphasis supplied). However, the statute under which he was convicted, 18 U.S.C. §

924(c)(1) defines the crime in the disjunctive. See 18 U.S.C. § 924(c)(1) (“Whoever,

during and in relation to any . . . drug trafficking crime . . . uses or carries a firearm . . .

.”). “[A] crime denounced in the statute disjunctively may be alleged in an indictment in

the conjunctive, and thereafter proven in the disjunctive.” United States v. Parrish, 925

F.2d 1293, 1297 (10th Cir. 1991) (internal quotation marks omitted). Mr. Alvarado thus

contends that he “never use[d] or carried a firearm” under Bailey’s reconstructed

definition of § 924(c)(1). See Aplt’s Br. at 12-13.


                                                3
       Mr. Alvarado must make a “substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), before we shall issue him a certificate of appealability. It

is clear that Bailey did not establish a new rule of constitutional law, but simply

interpreted a substantive criminal statute. United States v. Barnhardt, 93 F.3d 706, 709

(10th Cir. 1996) (holding “Bailey establishes a new non-constitutional rule of substantive

law”). However, the Supreme Court has held, pre-AEDPA, that a petitioner may

establish “exceptional circumstances where the need for the remedy afforded by the writ

of habeas corpus is apparent,” Davis v. United States, 417 U.S. 333, 346 (1974), if he

demonstrates that his “conviction and sentence are for an act that the law does not make

criminal.” Id. at 346-67 (holding that collateral relief under § 2255 is available for such a

conviction and punishment); see Barnhardt, 93 F.3d at 709-711 (allowing successive

post-Bailey § 2255 challenge to voluntariness of plea); United States v. Dashney, 52 F.3d

298, 299 (10th Cir. 1995) (applying Davis to new interpretation of financial structuring

offense in § 2255 action to prevent complete miscarriage of justice).

       Although grounded in a claim that his sentence was imposed “in violation . . . of

the laws of the United States,” 28 U.S.C. § 2255, such punishment would implicate the

Due Process Clause, and might result in a complete miscarriage of justice. See Hohn v.

United States, 99 F.3d 892, 895 (8th Cir. 1996) (McMillian, J., dissenting) (“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.”); see


                                              4
also Davis, 417 U.S. at 346. But see Young v. United States, __ F.3d __, No. 97-1518,

1997 WL 474415, at *5 (7th Cir. Aug. 21, 1997) (noting that Davis authorized relief

under § 2255, but does not necessarily apply to § 2253(c)(2), and stating “that there is a

gulf between a statutory and a constitutional error”); Hohn, 99 F.3d at 892 (noting there

is no showing of the denial of a constitutional right where petitioner made no due process

claim and holding that “an incorrect application of a statute by a district court, or any

other court, does not violate the Constitution”). Liberally construing his petition, see

Haines v. Kerner, 404 U.S. 519, 520 (1972), we hold that Mr. Alvarado has averred a

Fifth Amendment Due Process claim. See Aplt’s Br. at 2.

       We agree with the Second Circuit that to the extent that Mr. Alvarado relies on the

Fifth Amendment to assert that his conviction for behavior that is no longer considered

criminal is invalid, “his claim is constitutional, but not new; and to the extent that he

relies on Bailey, his claim is new, but not constitutional.” Triestman v. United States, __

F.3d __, No. 96-2563, 1997 WL 529622, at *10 (Aug. 28, 1997) (rejecting successive §

924(c)(1) claim as “new rule of constitutional law” under § 2255); see Coleman v.

United States, 106 F.3d 339, 341 (10th Cir. 1997) (same). As in Barnhardt, we recognize

that a petitioner may couple a constitutional Fifth Amendment Due Process Clause claim

with a “new non-constitutional rule of substantive law” in his application for a certificate

of appealability. 93 F.3d at 709. We thus may examine Mr. Alvarado’s claim under §




                                              5
2253(c)(2), although on its face it does not appear to assert the denial of a constitutional

right.

         We issue a certificate of appealability only if the issues raised are debatable among

jurists of reason, if a court could resolve the issues differently, or if the questions

presented are deserving of further proceedings. See Lennox v. Evans, 87 F.3d 431, 434

(10th Cir. 1996) (citing Barefoot v. Estelle, 463 U.S. 880, 892-93 & n.4 (1983)). As the

district court’s thorough opinion pointed out, Mr. Alvarado cannot make such a showing,

because the record is clear that he carried the firearm.2

             “To support a finding that a defendant carried a firearm, both before and after

Bailey, the government must prove ‘that the defendant transported a firearm in a vehicle

and that he had actual or constructive possession of the firearm while doing so,’ and must

also prove that the defendant possessed and transported the firearm during and in relation

to a drug-trafficking offense.” United States v. Simpson, 94 F.3d 1373, 1379 (10th Cir.

1996) (quoting United States v. Miller, 84 F.3d 1244, 1259 (10th Cir. 1996) and citing

United States v. Richardson, 86 F.3d 1537, 1548 (10th Cir. 1996)).




         2
               The dissent in Hohn makes a compelling argument that a claim for a
conviction for conduct that was never criminal in this kind of situation merits the granting
of a certificate of appealability. See Hohn v. United States, 99 F.3d 892, 894-95 (8th Cir.
1996) (McMillian, J., dissenting). We need not resolve this point, here, however, because
Mr. Alvarado cannot make a substantial showing of the denial of a constitutional right,
one that is debatable among jurists of reason. See Lennox v. Evans, 87 F.3d 431, 434
(10th Cir. 1996) (citing Barefoot v. Estelle, 463 U.S. 880, 893-94 & n.4 (1983)).

                                                 6
       “As an appellate court reviewing for sufficiency of the evidence, ‘we presume a

nexus between a firearm and a drug-trafficking offense when an individual with ready

access to a firearm is involved in such an offense.’” Richardson, 86 F.3d at 1548 (quoting

United States v. Baker, 30 F.3d 1278, 1280 (10th Cir. 1994) (internal quotation omitted)).

Mr. Alvarado admitted that he owned the firearm which was found next to him in the

automobile. There is no dispute that he was driving the vehicle at the time of the stop.

Finally, there is no allegation that Mr. Alvarado was unaware of the presence of a

substantial quantity of marijuana in the modified gas tank.

       Mr. Alvarado does not dispute the presumption of a nexus between the firearm and

the offense that arises when an individual with ready access to a firearm is involved in a

drug trafficking offense. “The evidence was sufficient for the jury to conclude that Mr.

[Alvarado] carried a firearm during and in relation to” the drug crime for which he was

convicted. Richardson, 86 F.3d at 1549.

       Accordingly, Mr. Alvarado has not made a substantial showing of the denial of a

constitutional right under 28 U.S.C. § 2253(c)(2), and we decline to issue him a certificate

of appealability and dismiss the appeal. The mandate shall issue forthwith.



                                                 Entered for the Court,

                                                 Robert H. Henry
                                                 Circuit Judge



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