                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1630
                                   ___________

David W. Johnson,                       *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
United States of America,               *
                                        *
            Appellee.                   *
                                   ___________

                             Submitted: September 12, 2001

                                 Filed: January 29, 2002
                                  ___________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

      David Wayne Johnson appeals the denial of his petition for writ of habeas
corpus. We affirm.

I.    BACKGROUND

      The complete facts of this case are set forth in an earlier opinion addressing
Johnson's direct appeal. See United States v. Johnson, 114 F.3d 808 (8th Cir. 1997).
A short summary will suffice here. In 1995, a jury found Johnson guilty of armed
bank robbery and using a firearm during and in relation to a crime violence. 18
U.S.C. §§ 2113(a), (d), 924(c). His sentence of 105 months' imprisonment was
affirmed on direct appeal. Johnson, 114 F.3d at 808. Johnson now appeals from the
final judgment entered in the district court1 denying his 28 U.S.C. § 2255 motion.
The district court granted Johnson a certificate of appealability on the claim that his
trial counsel was constitutionally ineffective for failing to challenge the sufficiency
of the evidence that a firearm was used during the bank robbery. An administrative
panel of this court expanded the certificate of appealability to include the issue of
whether relief should be granted because the trial court failed to give a jury
instruction regarding the section 924(c) charge consistent with Bailey v. United
States, 516 U.S. 137 (1995).

        Both issues on appeal relate to Johnson's section 924(c) conviction for using
a firearm during and in relation to a crime of violence. The basis for his conviction
on this charge was the testimony of Rikki Kreamer, the teller at the bank he robbed.
Kreamer made several pretrial statements about the presence of a gun during the
robbery. In her first statement to the FBI she said she saw "one to two inches of a
dark colored, rounded butt of a handgun." In a later statement, also to the FBI, she
said she saw "a gun lying at the bottom of the bag, however, only the butt of the gun
was visible." Police reports also indicate Kreamer said that Johnson showed her the
"grips of a handgun," and later police reports indicate she told the police she observed
the "butt of a dark colored grip to a handgun," but that Johnson "did not pull the
handgun from the bag, nor did he point the handgun at her." At trial, Kreamer
testified that Johnson placed a bag on the counter of the teller desk and when he
opened the bag she saw the butt of a gun inside the bag. Kreamer also testified that
Johnson pointed the gun in her direction as he was holding it inside the bag, after he
directed her to give him the money. Johnson did not offer any evidence that refuted


      1
       The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.

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Kreamer's testimony about the presence of a gun. Johnson's counsel cross-examined
Kreamer at the trial, but he did not cross-examine her about any of her pretrial
statements.

II.   DISCUSSION

      A.     Ineffective Assistance of Trial Counsel

       Johnson claims that his trial counsel was constitutionally deficient because he
failed to vigorously cross-examine Kreamer. Johnson argues that Kreamer made
several pretrial statements about the presence of a gun that contradicted her trial
testimony and he reasons that the failure to cross-examine her about those
inconsistencies amounts to a violation of his constitutional right to effective counsel.

       To establish ineffective assistance of counsel, a defendant must prove both that
his or her attorney's representation was deficient and that the deficient performance
prejudiced the defendant's case. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Judicial review of counsel's effectiveness is "highly deferential." Id. at 689. "A court
must indulge a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance." Id. When determining whether counsel's
representation was deficient, "a court must avoid second-guessing trial strategy."
Sanders v. Trickey, 875 F.2d 205, 207 (8th Cir. 1989). A claim of ineffective
assistance of counsel presents a mixed question of law and fact, therefore we conduct
an independent review of the district court's conclusions. See, e.g., Porter v.
Lockhart, 925 F.2d 1107, 1109 (8th Cir. 1991).

      Johnson contends that his trial counsel failed to vigorously cross-examine
Kreamer about her testimony that she saw a gun in Johnson's bag during the course
of the bank robbery. Johnson claims that the pretrial statements Kreamer made
concerning the presence of a gun contradicted her trial testimony. However, the

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pretrial statements Johnson points to are essentially consistent with Kreamer's trial
testimony. Johnson is correct that Kreamer may have given different accounts about
how much of the gun was visible during the robbery, but those small discrepancies
are not enough for us to conclude that counsel was constitutionally deficient for not
voraciously examining the teller about the differences, especially considering his
completely reasonable explanation of his trial strategy. The trial counsel's affidavit
reveals that the defense strategy was one of mistaken identity. The defense argued
that Johnson was not involved in the bank robbery at all and that Kreamer had
identified the wrong man. Counsel explained that he did not want to risk alienating
the jury by attacking a witness the jury likely found very sympathetic. Furthermore,
Johnson's counsel explained, it was part of the trial strategy to portray Kreamer as so
preoccupied with the gun that her identification of the robber was unreliable. In sum,
it appears from the record that counsel mounted a spirited and competent defense of
Johnson and his decision to eschew a tenacious cross-examination of the teller about
the gun was in no way deficient.

       In addition, even if Johnson could prove that his counsel was deficient, he
would fail the "prejudice" prong of the Strickland test. Strickland, 466 U.S. at 694.
Johnson must prove "that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id.
There is nothing in the record to support the notion that the result of the jury verdict
would have been different if trial counsel would have vigorously cross-examined
Kreamer about the use of the gun. In fact, the alleged inconsistencies in Kreamer's
pretrial statements and her trial testimony appear to be very slight. Examining the
record as a whole, including Kreamer's pretrial and trial statements, it appears that
even if counsel would have focused the jury on the teller's pretrial statements the
result of the proceeding would not have been different.




                                          -4-
      B.     Bailey Issue

      Johnson contends that his section 924(c) conviction for using a firearm during
and in relation to a crime of violence should be vacated because the jury instruction
allowed the jury to reach a verdict of guilt if it found merely that a firearm was
"available to aid in the commission of the bank robbery." Ten months after Johnson's
conviction, but several weeks before his sentencing, the Supreme Court decided
Bailey, 516 U.S. at 143, holding that the mere availability of a firearm at a crime
scene was an insufficient basis upon which to convict a defendant. Bailey held that
evidence of more active conduct, such as brandishing or displaying the firearm, is
required for a conviction under the statute. Id. at 148. Johnson argues his conviction
should be reversed because the jury instruction was improper.

      The government and the district court concede that the jury instruction used for
Johnson's trial did not satisfy Bailey's requirements. However, Johnson did not raise
this argument at sentencing or on direct appeal, which means he procedurally
defaulted on the Bailey issue. See Swedzinski v. United States, 160 F.3d 498, 500
(8th Cir. 1998). In order to obtain collateral review of a procedurally defaulted issue,
Johnson must show "either cause and actual prejudice, or that he is actually innocent."
Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted).

       Leaving aside the issue of cause, it is clear that Johnson was not actually
prejudiced by the failure to give the jury an instruction in accordance with Bailey.
To establish actual prejudice, Johnson must show that the erroneous jury instruction
"worked to his actual and substantial disadvantage, infecting his entire trial with error
of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1981).
Johnson must also show a substantial likelihood that a properly instructed jury would
have acquitted him of violating section 924(c). See id. at 172. There is not a
substantial likelihood that a properly instructed jury would have acquitted Johnson
of violating section 924(c). Bailey defined "use" of a firearm to include only those

                                          -5-
instances whereby the defendant actively employs a firearm, which includes
"brandishing, displaying, bartering, striking with, and, most obviously, firing or
attempting to fire a firearm." Bailey, 516 U.S. at 148. "Under this definition, 'the
silent but obvious and forceful presence of a gun on a table can be a "use,"' and 'a
reference to a [hidden] firearm calculated to bring about a change in the
circumstances of the predicate offense' can be a use." McNeal v. United States, 249
F.3d 747, 750 (8th Cir. 2001) (quoting Bailey, 516 U.S. at 148) (alterations in
original).

       The record is clear that Johnson "used" a firearm in a manner consistent with
Bailey's definition of the term. The bank teller testified that she saw the butt of a gun
in Johnson's bag. She further testified that after he told her to put the money in the
bag "he reached in like he was holding the gun in my direction and he had his hand
in the bag with the gun." It is clear from this undisputed testimony that Johnson not
only displayed a gun, he used the gun in an effort to get the teller to comply with his
demand to give him the money. Johnson's use of the weapon fits squarely within
Bailey's definition of "displaying" a firearm, as well as using the firearm to "bring
about a change in the circumstances of the predicate offense."2 Bailey, 516 U.S. at
148.

       For similar reasons, Johnson cannot establish that he was actually innocent of
the section 924(c) offense. "To establish actual innocence, petitioner must
demonstrate that, in light of all the evidence, it is more likely than not that no
reasonable juror would have convicted him." Bousley, 523 U.S. at 623 (internal
citations and quotations omitted). "This is a strict standard; generally, a petitioner

      2
      These facts also demonstrate that Johnson was not prejudiced by appellate
counsel's failure to raise the Bailey issue on direct appeal. Even if appellate counsel
would have raised the issue on direct appeal, Kreamer's testimony demonstrates that
counsel's error did not effect the outcome of the appeal. See Strickland, 466 U.S. at
694.

                                          -6-
cannot show actual innocence where the evidence is sufficient to support a section
924(c) conviction." McNeal 249 F.3d at 749-50 (citing United States v. Sorrells, 145
F.3d 744, 751 (5th Cir. 1998)). The evidence at Johnson's trial was clearly sufficient
to support a section 924(c) conviction, even under Bailey's more restricted definition
of use. Given the unrebutted testimony of the bank teller, we find that Johnson
cannot demonstrate that it is more likely than not that no reasonable juror would have
convicted him of the section 924(c) offense if given the proper instruction.


III.   CONCLUSION


       The judgment of the district court is affirmed.


       A true copy.

             Attest:

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




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