                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-1997

In Re: Dorsainvil
Precedential or Non-Precedential:

Docket 96-8074




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Recommended Citation
"In Re: Dorsainvil" (1997). 1997 Decisions. Paper 168.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/168


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Filed July 23, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-8074

IN RE: OCSULIS DORSAINVIL,
Petitioner

On Appeal from the United States District Court
for the Middle District of Pennsylvania

Argued May 1, 1997

Before: SLOVITER, Chief Judge,
STAPLETON and COWEN, Circuit Judges

(Opinion filed July 23, 1997)

James D. Crawford (Argued)
Wendy Bettlestone
Joseph T. Lukens
Schnader Harrison Segal & Lewis
Philadelphia, PA 19l03

Attorneys for Petitioner
Elizabeth D. Collery (Argued)
 United States Department of
 Justice
 Appellate Section, Criminal Division
Washington, D.C. 20044

David M. Barasch
 United States Attorney,
 Middle District of Pennsylvania
Dennis C. Pfannenschmidt
 Assistant United States Attorney
 Middle District of Pennsylvania

Attorneys for Respondent

OPINION OF THE COURT

SLOVITER, Chief Judge.

Ocsulis Dorsainvil has filed a motion pursuant to 28
U.S.C. §§ 2255 and 2244(b)(3)(A), as amended by the
Antiterrorism and Effective Death Penalty Act, seeking
certification to file a second § 2255 motion to vacate, set
aside, or correct his sentence. After Dorsainvil'sfirst
petition was denied on the merits, the Supreme Court
issued its opinion in Bailey v. United States, 116 S.Ct. 501
(1995). Dorsainvil argues that Bailey renders his weapons
conviction under 18 U.S.C. § 924(c)(1) invalid and asks that
this court certify his second petition so that he may
collaterally attack his § 924(c)(1) conviction in the district
court.

I.

FACTS AND PROCEDURAL HISTORY

Following a jury trial, Ocsulis Dorsainvil was convicted in
the United States District Court for the Middle District of
Pennsylvania of conspiracy to distribute cocaine base,
distribution of cocaine base, and use of a firearm during
and in relation to drug trafficking, a violation of 18 U.S.C.

                               2
§ 924(c)(1). In the course of the trial the government
introduced evidence that Dorsainvil and his co-defendant,
Anel Louis, had arranged to sell some crack cocaine to an
undercover policeman. When the police arrived, Dorsainvil
was in the driver's seat of a pickup truck from which the
drugs were to be sold. There was a gun in an open paper
bag next to the driver's seat, in the center of the pickup
truck. It was purchased by and registered to Dorsainvil.
There was testimony from police officers that, as the officers
moved in for the arrest after the buyer left to get the funds
to complete the drug sale, Dorsainvil was fumbling with his
pants, where cocaine was found, and making movements
as if he were reaching for something in front of him.
Dorsainvil did not touch the gun, and was arrested without
incident. His wallet and personal papers were found in the
bag with the gun after his arrest. He testified at trial and
admitted that he possessed the gun, but he denied that the
gun was related in any way to the drug transaction, stating
that he bought it for protection while living in Florida. The
jury convicted him on all counts.

Dorsainvil did not file a direct appeal, but sought
collateral relief under 28 U.S.C. § 2255 on the grounds of
ineffective assistance of counsel and double jeopardy. His
pro se petition was denied on the merits by orders dated
November 30, 1993, March 2, 1994, and April 22, 1994,
and there was no appeal. On December 6, 1995, the
Supreme Court decided Bailey v. United States, 116 S.Ct.
501 (1995), construing § 924(c)(1). Approximately nine
months later, Dorsainvil filed a second pro se § 2255
petition in the district court. The district court ruled that it
did not have jurisdiction to address the petition because of
changes effected in § 2255 procedure by the recently
enacted Antiterrorism and Effective Death Penalty Act of
1996, Pub.L. 104-132, 110 Stat. 1214 (the "AEDPA")
(codified in relevant part at 28 U.S.C. § 2255), and that only
this court could give the necessary certificate. Dorsainvil
then filed a motion with this court for certification of his
second petition for relief under § 2255. We denied his
motion, but stayed our order, appointed Dorsainvil counsel,
and invited counsel to brief a series of questions concerning
the AEDPA's newly enacted gatekeeping provisions.

                               3
II.

DISCUSSION

A.

Under the AEDPA, before a successive § 2255 motion
may be considered by the district court, it must be certified
by a three judge panel of the court of appeals to contain:

(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the
movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.

28 U.S.C. § 2255.

Dorsainvil had been convicted, inter alia, for using and
carrying a firearm in violation of 18 U.S.C. § 924(c)(1). The
language of that section, which imposes punishment upon
a person who "during and in relation to any . . . drug
trafficking crime . . . uses or carries a firearm," was
construed in Bailey, where the Supreme Court held that a
defendant could not be convicted of using a firearm under
that statute unless the government proved that the
defendant "actively employed the firearm during and in
relation to the predicate crime." 116 S. Ct. at 509.
Dorsainvil claims that there was insufficient evidence to
show that he actively employed a firearm in relation to a
drug trafficking crime and that he is therefore imprisoned
for conduct that the Supreme Court has determined is not
illegal.

In the posture of the matter before us, our task is not to
determine if, in fact, Dorsainvil used a firearm in a manner
that satisfied the Supreme Court's Bailey interpretation but
whether the AEDPA precludes a court from reaching the
merits. Because this is Dorsainvil's second § 2255 petition,
we may grant Dorsainvil's motion for a certificate only if

                               4
Dorsainvil meets one of the two prongs of § 2255's
gatekeeping provision. Dorsainvil argues that he satisfies
both prongs.1 We consider his contentions in turn.

Dorsainvil argues that his application contains the
requisite "newly discovered evidence." This contention is
plainly incorrect. Dorsainvil has not presented any "newly
discovered" facts that would bear on his guilt. Instead he
argues that the Bailey decision places established facts in
a different light so that they are as consistent with
innocence as they are with guilt.

We reject this creative interpretation of the plain
language of § 2255(1). If, after the Bailey decision, the
established facts would not have been sufficient to permit
a reasonable fact finder to find that Dorsainvil was guilty of
the use of a gun as proscribed by 18 U.S.C. § 924(c), it is
only because Bailey changed the interpretation of "use" of
a firearm by operation of law, not because of "newly
discovered evidence." We view the first prong of the
amended § 2255 as directed to certification of a successive
petition based on a change in the underlying factual
scenario, and conclude that Dorsainvil has alleged no such
change.

It is the second and alternative prong of the amended
§ 2255 that is directed to certification based on a change in
the legal scenario. Dorsainvil contends that Bailey
established a "new rule of constitutional law." Five courts of
appeals have already determined that Bailey did not
establish a new rule of constitutional law, but simply
interpreted a substantive criminal statute. See In re Vial,___
F.3d ___, 1997 WL 324385, at *3 (4th Cir. June 16, 1997);
Coleman v. United States, 106 F.3d 339, 341 (10th Cir.
1997)(per curiam); United States v. Lorentsen, 106 F.3d 278,
279 (9th Cir. 1997); In re Blackshire, 98 F.3d 1293, 1294
(11th Cir. 1996)(per curiam); Nunez v. United States, 96
_________________________________________________________________

1. Dorsainvil does not argue that the Act is inapplicable because it
cannot be applied retroactively to second motions made after its effective
date if the first motion was made before, see In re Vial, 1997 WL 324385,
at *6-*7 (4th Cir. June 16, 1997) (Hall, J., dissenting), and hence we
have no occasion to discuss the Supreme Court's opinion in Lindh v.
Murphy, 1997 WL 338568, at *3 (U.S. June 23, 1997).

                               5
F.3d 990, 992 (7th Cir. 1996). Dorsainvil counters that
where a successive petitioner claims that s/he has been
convicted and punished for conduct that the law no longer
makes criminal, the Due Process Clause is implicated,
because "[i]ncarceration for acts that do not constitute a
crime is patently offensive to the Constitution." Appellant's
Brief at 16. Dorsainvil appears to conclude that therefore
Bailey embodies an implicit rule of constitutional law.

Dorsainvil points to no legislative history to support such
a reading, which would be contrary to the plain language of
the statute. Under the statute, it is the "new rule" itself that
must be one "of constitutional law," not the effect of failing
to apply that rule to successive petitioners. Because we
believe it is plain that Bailey is not a "new rule of
constitutional law," we need not dwell on the fact that when
the Supreme Court announced its interpretation of
§ 924(c)(1), it did not make it "retroactive to cases on
collateral review." See Lorentsen, 106 F.3d at 279; Nunez,
96 F.3d at 992. The facts that the government has
conceded that Bailey should be applied retroactively, see
Appellee's Brief at 20, and courts have applied it
retroactively on collateral review, see, e.g., United States v.
Barnhardt, 93 F.3d 706, 709 (10th Cir. 1996), are
consistent with viewing Bailey as a substantive statutory
holding. Were it a constitutional rule, it would be subject to
the presumption against the retroactive application of new
rules of constitutional law as set forth in Teague v. Lane,
489 U.S. 288 (1989). See Barnhardt, 93 F.3d at 709.

We conclude, therefore, that Dorsainvil has failed to
satisfy either prong of § 2255 as amended.

B.

Dorsainvil argues that if his claim that he has been
convicted and imprisoned for conduct that is not criminal
cannot be heard by the district court, then § 2255 as
amended by the AEDPA is unconstitutional as a violation of
the Due Process Clause of the Fifth Amendment or the
Suspension Clause of Article I, section 9 of the
Constitution. Were no other avenue of judicial review
available for a party who claims that s/he is factually or

                               6
legally innocent as a result of a previously unavailable
statutory interpretation, we would be faced with a thorny
constitutional issue. Dorsainvil argues, however, that there
are a number of other avenues for relief, and proffers in
addition to the writ of habeas corpus available under 28
U.S.C. § 2241, the writ of error coram nobis, the writ of
audita querela and Rule 60(b) of the Federal Rules of Civil
Procedure. We need not consider the litany of potential
alternatives, because we conclude that, under narrow
circumstances, a petitioner in Dorsainvil's uncommon
situation may resort to the writ of habeas corpus codified
under 28 U.S.C. § 2241.

Section 2241 states that "[w]rits of habeas corpus may be
granted by the Supreme Court, any justice thereof, the
district court and any circuit judge within their respective
jurisdictions" to prisoners "in custody in violation of the
Constitution or laws or treaties of the United States." 28
U.S.C. § 2241(a),(c)(3). In Felker v. Turpin, 116 S.Ct. 2333
(1996), a case involving a state prisoner, the Supreme
Court considered the extent to which the AEDPA
circumscribed its own power to issue writs of habeas
corpus. The Court held that although section 106(b)(3)(E) of
the AEDPA, codified in 28 U.S.C. § 2244(b)(3)(E), precludes
the Supreme Court from reviewing by appeal or petition for
certiorari a judgment on an application for leave to file a
second habeas petition in district court, the Act does not
affect the Supreme Court's authority to hear habeas
petitions filed as original matters in that Court. Id. at 2339.
Reviewing the history of the predecessors of § 2241, the
Court observed that in the 1996 Act Congress had not
expressly referred to the Court's longstanding authority to
entertain a petition for habeas corpus, and stated that
"[r]epeals by implication are not favored." Id. at 2338. Thus,
in Felker, as in its decision more than a century earlier in
Ex parte Yerger, 8 Wall. 85, 19 L.Ed. 332 (1869), the Court
specifically "declin[ed] to find a . . . repeal of § 2241 of Title
28 . . . by implication." Felker, 116 S.Ct. at 2339.2
_________________________________________________________________

2. We note that in a recent decision, a district court held that the AEDPA
provision barring judicial review of certain deportation orders did not
repeal the habeas corpus jurisdiction that it has pursuant to § 2241, and
in so holding it relied upon the same language quoted in the text. See
Yesil v. Reno, 958 F. Supp. 828, 837 (S.D.N.Y. 1997).

                               7
Ever since 1948, when Congress enacted § 2255 to allow
for collateral review of the sentences of federal prisoners in
the trial court, that section, rather than § 2241, has been
the usual avenue for federal prisoners seeking to challenge
the legality of their confinement. The addition of § 2255 was
deemed necessary because the judiciary was experiencing
practical problems in light of the obligation for federal
prisoners to file their § 2241 claims in the district where
they were confined. This requirement meant that "the few
District Courts in whose territorial jurisdiction major
federal penal institutions are located were required to
handle an inordinate number of habeas corpus actions far
from the scene of the facts, the homes of the witnesses and
the records of the sentencing court solely because of the
fortuitous concentration of federal prisoners within the
district." United States v. Hayman, 342 U.S. 205, 213-14
(1952).

With the enactment of § 2255, much of the collateral
attack by federal prisoners has been routed to the
jurisdiction of the trial court. Congress's interest in
cabining those claims lays behind its enactment of Title I of
the AEDPA. Significantly, however, the AEDPA did not
amend the "safety-valve" clause in § 2255 that refers to the
power of the federal courts to grant writs of habeas corpus
pursuant to § 2241.

Indeed, § 2255, even following the recent amendment by
the AEDPA, specifically allows recourse to original writs of
habeas corpus, albeit in narrowly defined circumstances:

An application for a writ of habeas corpus in behalf of
a prisoner who is authorized to apply for relief by
motion pursuant to this section, shall not be
entertained if it appears that the applicant has failed to
apply for relief, by motion, to the court which
sentenced him, or that such court has denied him
relief, unless it also appears that the remedy by motion
is inadequate or ineffective to test the legality of his
detention.

28 U.S.C. § 2255 (emphasis added).

In Hayman, decided shortly after the enactment of
§ 2255, the Court considered the effect of the new provision

                               8
on habeas corpus claims brought under § 2241. 342 U.S. at
206. Hayman, the petitioner, had filed a motion under
§ 2255 claiming ineffective assistance of counsel. The
district court, after a hearing without notice to or the
presence of Hayman, denied the motion. The court of
appeals, questioning the adequacy and constitutionality of
§ 2255, directed that the motion be dismissed so that
Hayman could proceed by a writ of habeas corpus under
§ 2241. In overturning that decision, the Supreme Court
noted that because the district court ruling on a § 2255
motion could compel the production of the prisoner
confined in another district, § 2255 was neither "inadequate
nor ineffective." Id. at 222-23. At the same time, it
confirmed the continued availability of the writ of habeas
corpus, stating that "in a case where the Section 2255
procedure is shown to be `inadequate or ineffective,' the
Section provides that the habeas corpus remedy shall
remain open to afford the necessary hearing." Id. at 223.
The Court concluded that "[u]nder such circumstances, [it
need not] reach constitutional questions." Id.

The "inadequate or ineffective" language as a safety-valve
was also emphasized by the Court in Swain v. Pressley,
430 U.S. 372 (1977), where the petitioner challenged the
constitutionality of a provision of the District of Columbia
Code that channeled prisoners' collateral attacks to the
local Superior Court. The Supreme Court, relying on
Hayman, rejected the contention that the substitution
constituted a suspension of the Great Writ, stating: "The
Court implicitly held in Hayman, as we hold in this case,
that the substitution of a collateral remedy which is neither
inadequate nor ineffective to test the legality of a person's
detention does not constitute a suspension of the writ of
habeas corpus." Id. at 381.

The government argues that a § 2255 motion is not
"inadequate or ineffective" to test the legality of Dorsainvil's
detention because those terms should be limited to
situations where "practical considerations precluded a
remedy in the sentencing court." Appellee's Brief at 24
(emphasis in original). Although it concedes that there is
but sparse authority on the issue, it relies on legislative
history showing that the momentum for § 2255 emanated

                               9
from the Judicial Conference of the United States which
had recommended two bills, a "procedural bill" and a
"jurisdictional bill," that were the precursors of § 2255. The
"jurisdictional bill" would have expressly limited an
application for writ of habeas corpus unless the prisoner
showed that " `it appears that it has not been or will not be
practicable to determine his rights to discharge from
custody on [a § 2255 motion] because of his inability to be
present at the hearing on such motion or for other
reasons.' " Hayman, 342 U.S. at 216 n.23 (quoting
H.R.4233 and S.1451, 79th Cong., 1st Sess. (jurisdictional
bill)).

Congress did not adopt the language of the Conference's
bill, and the statute as enacted contained the "inadequate
or ineffective" clause without circumscribing it in the
manner proposed in the Judicial Conference proposal.
Nothing in § 2255 itself would limit resort to a § 2241 writ
of habeas corpus in the manner suggested by the
government. Although admittedly habeas corpus under
§ 2241 is now reserved for rare cases, the Court in Hayman
stressed that in enacting § 2255 Congress did not intend
"to impinge upon prisoners' rights of collateral attack upon
their convictions," id. at 219, but solely "to minimize the
difficulties encountered in habeas hearings by affording the
same right in another and more convenient forum." Id.

It is noteworthy that when the Supreme Court in Swain
turned to the issue of the adequacy of the new provision in
the District of Columbia Code, which is virtually identical to
§ 2255, it did not limit its consideration to "practical
considerations," as the government argues here, but
inquired whether the availability of a collateral remedy
before an Article I court was adequate to test the legality of
the detention. Swain, 430 U.S. at 382-83. Although it
rejected the challenge, the fact that the Court considered
the merits of the adequacy issue when the challenge went
beyond one limited to a practicality issue suggests a
broader scope to the "inadequate or ineffective" language
than the government's narrow interpretation proffered here.
Indeed, we are hard put to understand precisely the type of
situation which the government believes fits within the
"inadequate or ineffective" language.

                               10
Dorsainvil argues that the safety-valve provision of
§ 2255 covers his situation because he seeks to challenge
his conviction on a second § 2255 petition based on an
intervening decision by the Supreme Court. A similar case
"involv[ing] the availability of collateral relief from a federal
criminal conviction based upon an intervening change in
substantive law" came before the Supreme Court in Davis
v. United States, 417 U.S. 333, 334 (1974). In that case, the
Court stated that a Supreme Court decision interpreting a
criminal statute that resulted in the imprisonment of one
whose conduct was not prohibited by law "presents
exceptional circumstances where the need for the remedy
afforded by the writ of habeas corpus is apparent." Id. at
346 (internal quotations omitted). The Court held that "if
[petitioner's] contention is well taken, then [his] conviction
and punishment are for an act that the law does not make
criminal. There can be no room for doubt that such a
circumstance inherently results in a complete miscarriage
of justice and present(s) exceptional circumstances that
justify collateral relief under § 2255." Id. at 346-47 (internal
quotations omitted); see also United States v. Addonizio,
442 U.S. 178, 186-87 (1979) (discussing Davis and
observing that a refusal to have vacated his sentence
"would surely have been a `complete miscarriage of justice,'
since the conviction and sentence were no longer lawful").

The decision in Davis that § 2255 was broad enough to
cover a defendant imprisoned for a crime that an
intervening decision negates does not govern Dorsainvil's
motion before us only because he has brought his claim for
relief on a second § 2255 motion. In the earlier part of this
opinion, we construed the AEDPA to preclude our
certification of a second § 2255 motion that relied on the
intervening decision in Bailey as a basis for certification.
Thus, Dorsainvil does not have and, because of the
circumstance that he was convicted for a violation of
§ 924(c)(1) before the Bailey decision, never had an
opportunity to challenge his conviction as inconsistent with
the Supreme Court's interpretation of § 924(c)(1). If, as the
Supreme Court stated in Davis, it is a "complete
miscarriage of justice" to punish a defendant for an act that
the law does not make criminal, thereby warranting resort
to the collateral remedy afforded by § 2255, it must follow

                               11
that it is the same "complete miscarriage of justice" when
the AEDPA amendment to § 2255 makes that collateral
remedy unavailable. In that unusual circumstance, the
remedy afforded by § 2255 is "inadequate or ineffective to
test the legality of [Dorsainvil's] detention."

There is no reason why § 2241 would not be available
under these circumstances, provided of course that
Dorsainvil could make the showing necessary to invoke
habeas relief, an issue for the district court. The coverage
of the two provisions is not dissimilar. Indeed, in Davis the
Court stated "[t]hat history makes clear that § 2255 was
intended to afford federal prisoners a remedy identical in
scope to federal habeas corpus." Davis, 417 U.S. at 343;
see also United States v. Anselmi, 207 F.2d 312, 314 (3d
Cir. 1953) ("[S]ection 2255 . . . afford[s] to a convicted
federal prisoner a remedy which is the substantial
equivalent of the conventional writ of habeas corpus.")
(emphasis added).

We do not suggest that § 2255 would be "inadequate or
ineffective" so as to enable a second petitioner to invoke
§ 2241 merely because that petitioner is unable to meet the
stringent gatekeeping requirements of the amended § 2255.
Such a holding would effectively eviscerate Congress's
intent in amending § 2255. However, allowing someone in
Dorsainvil's unusual position - that of a prisoner who had
no earlier opportunity to challenge his conviction for a
crime that an intervening change in substantive law may
negate, even when the government concedes that such a
change should be applied retroactively - is hardly likely to
undermine the gatekeeping provisions of § 2255.

Nothing in our holding in this case represents a deviation
from our prior precedent strictly construing the
applicability of the safety-valve language in § 2255. See
Application of Galante, 437 F.2d 1164, 1165-66 (3d Cir.
1971) (per curiam) (unfavorable legal standards prevailing in
circuit where sentencing court located does not render
§ 2255 remedy "inadequate or ineffective"); Litterio v. Parker,
369 F.2d 395, 396 (3d Cir. 1966) (per curiam) (sentencing
court's prior denial of identical claims does not render
§ 2255 remedy "inadequate or ineffective"); Mucherino v.
Blackwell, 340 F.2d 94, 95 (3d Cir. 1965) (per curiam)

                               12
(same); Crismond v. Blackwell, 333 F.2d 374, 377 & n.6 (3d
Cir. 1964) (neither 2,000 mile distance between sentencing
court and district of confinement, nor denial of relief by
sentencing court, nor denial of leave to appeal from
sentencing court in forma pauperis, render § 2255 remedy
"inadequate or ineffective," nor do any "unusual
circumstances" exist); United States ex rel. Leguillou v.
Davis, 212 F.2d 681, 684 (3d Cir. 1954) (remedy by § 2255
motion not "inadequate or ineffective" if district court "could
have entertained the prisoner's claim, inquired fully into
the facts and granted the very relief the prisoner is
seeking"); see also Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996) (denial of prior § 2255 motion does not
show that § 2255 is an inadequate remedy).

The government has not suggested that Dorsainvil has
abused the writ, the principal situation that the AEDPA
was intended to eliminate and for which the Court in Felker
chose to be "inform[ed]" by the gatekeeping provisions of
§ 2255. 116 S. Ct. at 2339. He is in an unusual situation
because Bailey was not yet decided at the time of his first
§ 2255 motion. Our holding that in this circumstance
§ 2255 is inadequate or ineffective is therefore a narrow
one. In the posture of the case before us, we need go no
further to consider the other situations, if any, in which the
"inadequate or ineffective" language of section 2255 may be
applicable.

C.

The question before us is not whether Dorsainvil is
actually innocent of violating § 924(c)(1), but rather, as in
Davis, 417 U.S. at 347, whether his claim that he is being
detained for conduct that has subsequently been rendered
non-criminal by an intervening Supreme Court decision is
cognizable in a district court. The government does not
argue that Dorsainvil "used" a firearm within the meaning
of § 924(c)(1), but instead argues that Dorsainvil was
"carrying" a firearm within the meaning of§ 924(c)(1), and
therefore cannot present himself as "actually innocent."
There may be some force in the government's argument,
which has convinced our concurring colleague. Judge
Stapleton relies for precedent on this court's recent decision

                                13
in United States v. Eyer, 113 F.3d 470 (3d Cir. 1997), where
we held that the defendant, who had a firearm in an
automobile in a position similar to that of Dorsainvil, was
guilty under the "carries" language of § 924(c)(1) penalizing
anyone who "during and in relation to any . . . drug
trafficking crime . . . uses or carries a firearm." However, in
Eyer, unlike this case, the facts showed that the handgun
"was conveyed with the cocaine to the purchaser's
apartment," id. at 476, which patentlyfits the definition of
carrying. Dorsainvil argues that "transportation" of a
firearm is not the same as "carrying" it for purposes of this
statute. Moreover, Dorsainvil may argue that the jury was
not fully charged on the "carry" aspect to§ 924(c)(1), and
we have found that "carry" appears to have been referred to
only summarily in the district court's instructions.

We offer no opinion on these issues. Unlike our
concurring colleague, we believe they are best presented to
a district court as that court can view the full record of the
evidence presented, the arguments made at trial, and the
charge. It is sufficient for our purposes in declining to reach
the constitutional issue raised by Dorsainvil that we have
concluded that resort to § 2241 is still available in an
appropriate case, and that Dorsainvil's claim is not so
devoid of merit that it should be foreclosed by us at this
stage. The AEDPA has channeled § 2241 petitions to the
district courts in the first instance. No district court has
had the opportunity to consider whether, following Bailey,
Dorsainvil's conduct falls within § 924(c)(1). We cannot
conclude that Dorsainvil has failed to present at least a
sufficiently colorable claim based on Bailey for review under
§ 2241.

III.

CONCLUSION

We adhere to our prior order denying Dorsainvil's motion
for certification to file a second petition pursuant to § 2255.
Our denial is without prejudice to Dorsainvil's right to file
a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 in a district court in the district of his confinement.

                               14
STAPLETON, Circuit Judge, Concurring:

As I read the opinion of the court, my colleagues and I
agree on the following propositions:

1. Dorsainvil has failed to meet the gatekeeping criteria
of the AEDPA applicable to successive petitions under
§ 2255.

2. Section 2255 is not "inadequate or ineffective to test
the legality of detention" merely because access to a federal
court under that section is barred by the gatekeeping
provisions. The availability of relief by way of an initial
petition means that § 2255 is normally adequate and
effective for this purpose even though a successive petition
would be barred by the gatekeeping provisions.

3. Section 2255 is "inadequate or ineffective to test the
legality of detention" in a case where the gatekeeping
provisions bar a successive petitioner who can allege actual
innocence of the crime of which he was convicted and who,
at the time of his earlier petition(s), could not demonstrate
that innocence. Accordingly, § 2255 is "inadequate or
ineffective" in a situation in which a successive petitioner
can allege both that the Supreme Court, since his last
petition, has interpreted the statute under which he was
convicted in a new way and that his conduct was lawful
under the statute as subsequently interpreted.

4. Although the gatekeeping provisions applicable to
successive § 2255 petitions must "inform" a court in
determining whether to entertain a petition under§ 2241,
cf. Felker v. Turpin, ___ U.S. ___, 116 S. Ct. 2333 (1996) (so
holding with respect to the gatekeeping provisions
applicable to successive § 2254 petitions), a court can
entertain a § 2241 petition where a successive petitioner
can allege both that the Supreme Court, since his last
petition, has interpreted the statute under which he was
convicted in a new way and that his conduct was lawful
under the statute as so interpreted.

5. Denial of Dorsainvil's application for permission to
file a successive § 2255 petition because he has failed to
satisfy the gatekeeping provisions does not violate the Due
Process Clause or the Suspension of the Writ Clause.

                               15
As I read the court's opinion, my colleagues and I do
differ on whether it may be possible in this particular case
for Dorsainvil to gain access to a federal court under
§ 2241. They suggest that a district court, after viewing "the
full record of the evidence presented, the arguments made
at trial, and the charge" (Slip Op. at 14), might properly
decide to entertain a § 2241 petition despite the fact that
Dorsainvil has not satisfied the gatekeeping provisions of
the AEDPA applicable to successive § 2255 petitions. I
disagree because it is clear from the record in this case that
Dorsainvil cannot allege facts which will support his claim
of actual innocence, and therefore the unavailability of
relief under § 2255 does not render that provision
inadequate or ineffective as to him.

Dorsainvil was indicted for "knowingly us[ing] and
carry[ing] ... a firearm during and in relation to ... drug
trafficking crimes." Superseding Indictment, Count III.,
App. at 36-37. In accordance with the indictment, the court
charged the jury on "using or carrying afirearm during and
in relation to a drug trafficking crime." Tr. at 9 (emphasis
added).1 The undisputed facts from Dorsainvil's trial and
the jury's finding that he used or carried a gun "during and
in relation to a drug trafficking crime" make it impossible
for him to allege that his conduct was not prohibited by the
statute he was convicted of violating.

The uncontradicted record establishes that Dorsainvil
drove the truck, that he was apprehended in the driver's
seat with cocaine in his pants, that there was a loaded gun
with a live round in the chamber in an open paper bag also
containing his wallet and personal papers, that the bag was
located between the front seats within his reach, and that
the firearm was purchased by and registered to him.
Dorsainvil did not contest these facts at trial. Nor did he
contest the fact that he had placed the gun in the truck. He
_________________________________________________________________

1. At oral argument Dorsainvil's counsel questioned the adequacy of the
charge on "carrying," pointing out that more emphasis was placed on
"using." Dorsainvil did not object at trial to the charge on this ground.
More importantly, he cannot succeed at this stage in the game merely by
pointing to a deficiency in a jury instruction. He must allege facts that
affirmatively demonstrate innocence. This he cannot do.

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denied only that the gun's presence bore any relation to the
drug transaction. Based on facts that Dorsainvil does not
now dispute, and after being fully instructed on the "in
relation to" element of the offense charged, the jury found
Dorsainvil guilty as charged.

While Dorsainvil stresses that the trial court gave a more
expansive definition of "use" than would be warranted after
Bailey, he ignores the fact that he "carried" the gun in
relation to the drug transaction, even if he did not also
"use" it in relation to that transaction. Indeed, on virtually
the same facts, this court has held that the defendant
"carried" a gun in relation to a drug offense. United States
v. Eyer, 113 F.3d 470 (3d Cir. 1997). Despite the court's
suggestion to the contrary, there is no legally relevant
distinction between Dorsainvil's case and Eyer.

Police arrested the defendant in Eyer while he was
making a delivery of cocaine and seized his automobile.
They discovered "a fully loaded Colt .380 caliber semi-
automatic hand gun with a live round in its chamber
located in the console between its front seats along with
some cocaine." Id. at 471. After defendant-Eyer's § 924(c)(1)
conviction at a bench trial, he filed a § 2255 petition
predicated on the decision in Bailey. He asserted that he
was tried "based on the expansive definition of `use' set
forth in United States v. Theodoropoulus, 866 F.2d 587 (3d
Cir. 1989), which held that a firearm was `used' if it was
available for possible use during the drug transaction."
Eyer, 113 F.3d at 475. Eyer also insisted that the facts in
his case could not justify a conviction under the carry
prong. The district court rejected both arguments and we
affirmed. With respect to Eyer's insistence that he did not
"carry" the gun, we held:

[T]he facts here compel the conclusion that Eyer was
carrying the firearm.... [T]he handgun was loaded and
was in a console between the two front seats, and was
conveyed with the cocaine to the purchaser's
apartment. Eyer's easy access to the handgun and its
transportation convinces us that he was carrying it.

Id. at 476 (emphasis added). Dorsainvil, too, had easy
access to a gun while he transported it during and in

                               17
relation to a drug offense, and these facts compel the
conclusion that Dorsainvil "carried" the gun.

In short, this is not a case in which the petitioner alleges
facts that demonstrate actual innocence, and no
miscarriage of justice will result from denial of the § 2255
certification. Accordingly, alternative access to a federal
court under § 2241 is not necessary to the constitutionality
of § 2255, and I would not suggest that such access might
be available.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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