                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        July 5, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-31034
                             Summary Calendar



                             ROY STEVE DAVIS,
                                                    Petitioner-Appellant,

                                  versus

                              ROBERT TAPIA,
                                                     Respondent-Appellee.



            Appeal from the United States District Court
                for the Western District of Louisiana
                         USDC No. 1:04-CV-618


Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

            Roy Steve Davis, federal prisoner # 16159-083, appeals

the denial of his 28 U.S.C. § 2241 habeas petition challenging his

convictions for bank robbery and use of a firearm during a crime of

violence.    He alleges that he was denied the effective assistance

of counsel, the evidence was not sufficient to support the convic-

tions, the jury was improperly instructed, the district court

improperly applied the sentencing guidelines, and the Government

failed to prove that he used a weapon in relation to the offense

under Bailey v. United States, 516 U.S. 137 (1995).


     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
            Davis contends that his claims fall within the savings

clause of 28 U.S.C. § 2255.        “[T]he savings clause of 28 U.S.C.

§ 2255 applies to a claim (i) that is based on a retroactively

applicable    Supreme   Court   decision   which    establishes    that   the

petitioner may have been convicted of a nonexistent offense and

(ii) that was foreclosed by circuit law at the time when the claim

should have been raised in the petitioner’s trial, appeal, or first

§ 2255 motion.”    Reyes-Requena v. United States, 243 F.3d 893, 904

(5th Cir. 2001).

            With respect to his non-Bailey claims, Davis has not

pointed to a retroactively applicable Supreme Court decision which

establishes that he may have been convicted of a nonexistent

offense, nor has he shown that these claims were foreclosed by

circuit law at the time of his conviction or when he filed his

initial 28 U.S.C. § 2255 motion.        See Reyes-Requena, 243 F.3d at

903-04.

            Davis’ Bailey claim was foreclosed by circuit law at the

time that he filed his first 28 U.S.C. § 2255 motion.             See United

States v. Paz, 927 F.2d 176, 179 (4th Cir. 1991).                 He is not

entitled to raise the Bailey claim in a successive motion because

the Bailey decision did not announce a new rule of constitutional

law.    Bousley v. United States, 523 U.S. 614, 620-23 (1998);

§ 2255. A valid Bailey claim is sufficient to meet the requirement

that the claim is based on a retroactively applicable Supreme Court

case.     See Bousley, 523 U.S. at 620-21.         However, it is unclear

                                    2
whether Davis can show that he was convicted of a nonexistent

offense under Bailey.

           Title    18   U.S.C.   §   924(c)(1)     calls   for    an    enhanced

sentence when a person uses or carries a firearm during and in

relation to any crime of violence or drug-trafficking crime.                  The

Bailey   decision    interpreted      the   “use”    prong    of    18    U.S.C.

§ 924(c)(1) as requiring the Government to show “active employment

of the firearm” to sustain a conviction on that prong.              516 U.S. at

144.   The Fourth Circuit Court of Appeals has held that Bailey did

not define “carrying” within the context of 18 U.S.C. § 924(c).

See United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997).

           It cannot be determined from the record whether Davis was

charged with “using” or “carrying” a firearm.                 Nor can it be

discerned from the record whether Davis “used” the weapon within

the meaning of Bailey.      The judgment of the district court denying

the motion is VACATED, and the case is REMANDED to the district

court for a determination whether Davis’ conviction under 18 U.S.C.

§ 924(c) was valid in light of Bailey.

           VACATED AND REMANDED.




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