                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 00-3040
DWIGHT B. LEWIS,
                                             Petitioner-Appellant,
                               v.

T.C. PETERSON, Warden,
                                            Respondent-Appellee.
                        ____________
           Appeal from the United States District Court
               for the Central District of Illinois.
             No. 00-1094—Michael M. Mihm, Judge.
                        ____________
        ARGUED APRIL 9, 2003—DECIDED MAY 27, 2003
                        ____________


  Before FLAUM, Chief Judge, and POSNER and KANNE, Circuit
Judges.
  POSNER, Circuit Judge. The petitioner, Dwight Lewis, was
convicted in a district court in the Eighth Circuit, pursu-
ant to a guilty plea based on a plea agreement that he had
signed, of using a firearm to commit a federal drug offense,
in violation of 18 U.S.C. § 924(c). The agreement provided
for the dismissal of another section 924(c) charge, this one
based on an incident that occurred before the incident that
formed the basis of his guilty plea. The petitioner did not
appeal his conviction, but he later filed a motion under 28
U.S.C. § 2255 to vacate it on the ground that the Supreme
2                                                No. 00-3040

Court’s decision in Bailey v. United States, 516 U.S. 137, 150
(1995), rendered shortly after he had been convicted,
showed that (as the government acknowledges) he was
innocent of the section 924(c) charge to which he had
pleaded guilty. The district court denied his motion before
the Supreme Court held, in Bousley v. United States, 523
U.S. 614 (1998), that a person who was convicted before
Bailey and failed to challenge his conviction by way of a
direct appeal, thus forfeiting his normal right to mount a
collateral attack on the conviction, id. at 621, can neverthe-
less get his conviction set aside by means of a collateral
proceeding if he proves that he is innocent both of the
section 924(c) offense of which he was convicted (the “actual
innocence” requirement imposed on defaulters) and of any
“more serious” charge that the government dropped or
otherwise forwent in the course of plea negotiations. Id.
at 623-24.
   The idea behind this rule is that had the government
foreseen Bailey it would not have dropped the charge and
so the petitioner, who we know wanted to plead guilty,
would probably have pleaded guilty to that charge instead,
and if it was a more serious charge (or we add, no less
serious a charge) he would probably have incurred a lawful
punishment no less severe than the one imposed on him
under the count to which he pleaded guilty, the count
that he was later determined to be innocent of by virtue of
the Court’s interpretation of section 924(c) in Bailey. Of
course, it could not be said with certainty that his punish-
ment would have been the same. A defendant may want
to plead guilty whether there are two counts in the indict-
ment or one, but if he learns that one is invalid he may
hold out for a better deal on the other, since, for example,
he doesn’t have to worry about consecutive sentences. This
is a possibility, surely, but to allow the defendant to use
it to get off scot free would be to confer a windfall on him,
No. 00-3040                                                   3

as the government would not have dropped a good count
in plea negotiations had it known that the remaining count
was invalid, and if the dropped charge was indeed a
good count, the defendant would not have escaped punish-
ment had it not been dropped, punishment at least compa-
rable to that imposed on the bad count.
  After the decision in Bousley, Lewis filed a second collat-
eral attack, this one a petition for habeas corpus in the
district of his incarceration, which happens to be in our
circuit, not the Eighth Circuit. 28 U.S.C. § 2241(d). He
invoked the provision in 28 U.S.C. § 2255 that allows this
maneuver if it “appears that the remedy by [section 2255]
motion is inadequate or ineffective to test the legality of
his detention.” See In re Davenport, 147 F.3d 605, 611 (7th
Cir. 1998). It was here. The petitioner could not have sat-
isfied the criteria for filing a second section 2255 motion
because he was not seeking relief on the basis of newly
discovered evidence or a new rule of constitutional law,
which are the only grounds for a second such motion. Id.
at 610. Yet the combined effect of Bailey and Bousley is to
establish that he was convicted of a nonexistent crime, a
consequence that, as the Bousley decision makes clear, is
a ground for collateral relief. Therefore, with the section
2255 route barred, he was entitled to proceed by way of
habeas corpus. In re Davenport, supra, 147 F.3d at 610-12;
In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997); cf. Gray-Bey
v. United States, 209 F.3d 986, 989-90 (7th Cir. 2000) (per
curiam). And so the district court assumed, but it went
on to deny relief on the merits and the petitioner has
appealed.
  He concedes that had the section 924(c) offense that
was dropped in the plea negotiations been committed after
the section 924(c) offense to which he pleaded guilty was
committed, then because a second such offense carried
at the time an additional 20-year sentence, see 18 U.S.C.
4                                                 No. 00-3040

§ 923(c)(1)(C)(i) (since amended to raise the addition to 25
years), the charge that was dropped would have been “more
serious” than the one to which he pleaded. And since
he cannot demonstrate his innocence of the dropped
offense, he would in those circumstances be entitled to
no relief. But, he argues, relying on United States v. Johnson,
260 F.3d 919, 921 (8th Cir. 2001) (per curiam), because
the dropped offense occurred first, and a later offense
cannot be used to enhance the punishment for an earlier
one, the “more serious” criterion of Bousley has not been
met. The dropped charge, the one that he cannot dem-
onstrate he did not commit, was no more serious than
the one to which he pleaded guilty and which he has
shown that he did not (by virtue of Bailey’s interpretation
of section 924(c)) commit.
  We disagree with Johnson’s reading of Bousley. The logic
of the Bousley opinion does not require that the charge
that was dropped or forgone in the plea negotiations be
more serious than the charge to which the petitioner
pleaded guilty. It is enough that it is as serious. For if it
is as serious, the petitioner would have gained little or
nothing had the government and he realized that the
charge to which he pleaded guilty was unsound. Had they
realized this they would have switched the plea to
the sound charge, and as long as it was an equally serious
charge, as it was here, the punishment would probably
have been the same, subject to our earlier acknowledg-
ment that the government might drive a harder plea bar-
gain if it had two good counts to brandish rather than just
one. But this is true whether the valid count charges a more
serious crime than the invalid one or a crime that is as
serious; only if it charges a less serious crime is there a
strong reason to believe that the defendant was punished
more severely by virtue of having pleaded guilty to the
count later learned to be invalid. Thus the Court’s reasoning
No. 00-3040                                                 5

does not support limiting the rule of Bousley to the case
in which the dropped or otherwise forgone charge was
more serious, rather than as or more serious, than the
charge to which he pleaded guilty.
  Because this decision creates a conflict with another
circuit, the opinion was circulated to the full court in
advance of publication, in accordance with 7th Cir. R. 40(e).
No judge in regular active service voted to hear the case
en banc. (Judge Coffey did not participate in the consider-
ation of whether to hear the case en banc.)
                                                  AFFIRMED.

A true Copy:
       Teste:

                           _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




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