                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 97-5029.

                             John David JONES, Petitioner-Appellant,

                                                  v.

                      UNITED STATES of America, Respondent-Appellee.

                                           Sept. 10, 1998.

Appeal from the United States District Court for the Southern District of Florida. (Nos. 93-8049-cr-
JAG, 96-8593-cv-JAG), Jose A. Gonzalez, Jr., Judge.

Before HATCHETT, Chief Judge, BLACK, Circuit Judge, and KRAVITCH, Senior Circuit Judge.

       BLACK, Circuit Judge:

       In July 1994, Appellant John David Jones pled guilty to one count of possessing cocaine with

the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), and one count of using and carrying

one or more firearms during and in relation to a drug trafficking offense, in violation of 18 U.S.C.

§ 924(c). Appellant did not file a direct appeal. After the Supreme Court issued its decision in

Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), Appellant filed a §

2255 petition, seeking relief with respect to his 18 U.S.C. § 924(c) conviction. The district court

denied the petition and Appellant filed this appeal. We hold that Appellant procedurally defaulted

his claims by failing to raise them on direct appeal, but remand for a hearing on the issue of whether

Appellant is actually innocent of the § 924(c) charge and therefore can avoid the procedural bar.

                                         I. BACKGROUND
       On March 16, 1993, police officers obtained a warrant to search Appellant's residence. Later

that day, officers stopped Appellant as he was driving away from his residence.1 The police then

brought Appellant back to the house and executed the search warrant. The officers found 210.88

grams of crack cocaine, 314.36 grams of powder cocaine, $154,506 in cash, a number of handguns,

a rifle, and a shotgun.

       Appellant was indicted on three counts: Count I charged possession of cocaine with the

intent to distribute it, in violation of 21 U.S.C. § 841(a)(1); Count II charged knowingly using and

carrying one or more firearms during and in relation to the drug felony set forth in Count I, in

violation of 18 U.S.C. § 924(c); and Count III charged illegal possession of firearms by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A superseding indictment added a

criminal forfeiture count, but left the first three counts unchanged. On July 20, 1994, Appellant pled

guilty to Counts I and II of the superseding indictment. On April 28, 1995, Appellant was sentenced

to 262 months' incarceration on Count I and 60 months' incarceration on Count II, to run

consecutively. The district court also imposed five years' supervised release and ordered Appellant

to pay $200 in special assessments. Appellant did not challenge his convictions on direct appeal.

       On December 6, 1995, the Supreme Court issued its opinion in Bailey v. United States, in

which it defined "use" under 18 U.S.C. § 924(c) more narrowly than this Court had defined that term

at the time of Appellant's plea. 516 U.S. at 150, 116 S.Ct. at 509. On August 20, 1996, Appellant

moved pursuant to 28 U.S.C. § 2255 to vacate his § 924(c) conviction, contending that the evidence

does not support the conviction and that his plea was not voluntary. He further asserted that his plea


   1
    The Government contends that the police found a semi-automatic handgun in Appellant's car.
Appellant contested that alleged fact at oral argument. The district court will have to address
this and other factual disputes on remand.

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and his failure to take a direct appeal do not bar him from challenging his conviction in a § 2255

petition because he can establish cause and prejudice and because he is actually innocent. Without

holding a hearing, the district court denied the petition. Appellant filed this appeal.

                                            II. ANALYSIS

        The issue we address in this case is whether Appellant's failure to challenge his § 924(c)

conviction on direct appeal bars him from doing so in a § 2255 petition. At oral argument, the

parties agreed that the Supreme Court's decision in Bousley v. United States, --- U.S. ----, 118 S.Ct.

1604, 140 L.Ed.2d 828 (1998), resolves the issue and that this case should be remanded for a hearing

on whether Appellant is actually innocent of the § 924(c) charge and therefore can avoid the

procedural bar to his claims. We agree.

        The facts in Bousley closely resemble the facts in this case. In Bousley, the Supreme Court

addressed the issue of whether a petitioner who pled guilty in 1990 to a § 924(c) charge, and did not

contest the validity of his plea on direct appeal, was barred from seeking relief from his plea under

the Supreme Court's decision in Bailey.2 The Court began by stating that petitioner's plea would not

be valid if neither he, his counsel, nor the court correctly understood the elements of the § 924(c)

charge. Id. at ----, 118 S.Ct. at 1609. The Court explained, however, that the petitioner had

procedurally defaulted his claim by failing to raise it on direct appeal. Id. at ----, 118 S.Ct. at 1610.



   2
    The petitioner in Bousley filed his § 2255 petition before the Supreme Court issued its
decision in Bailey. He claimed that there was an insufficient factual basis for his guilty plea.
The district court ordered that the petition be dismissed and he filed an appeal. While the appeal
was pending, the Supreme Court issued its decision in Bailey. Before the Court of Appeals, the
petitioner argued that his plea was involuntary because he was misinformed as to the elements of
§ 924(c) and that he did not waive the claim by pleading guilty. The Court of Appeals affirmed
the district court's dismissal of the petition. Bousley, --- U.S. at ----, 118 S.Ct. at 1608 (citation
omitted).

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Petitioner could avoid the procedural bar by showing either "cause and actual prejudice or that he

is actually innocent." Id. at ----, 118 S.Ct. at 1611 (internal quotations and citations omitted).

        Applying Bousley to this case, Appellant has procedurally defaulted his claims and can raise

them in a § 2255 petition only if he shows cause and actual prejudice or actual innocence. Reading

Appellant's brief broadly, Appellant argues that he satisfies the cause and actual prejudice standard

because (1) no one had any idea that "use" under § 924(c) would be radically redefined by the

Supreme Court in Bailey, and (2) it would have been futile to raise his arguments on direct appeal

based on this Circuit's precedent at the time of his guilty plea. The Supreme Court squarely rejected

both of these arguments in Bousley. Id. at ----, 118 S.Ct. at 1611. In addressing the first argument,

the Supreme Court observed that "the Federal Reporters were replete with cases involving

challenges to the notion that "use' is synonymous with mere "possession.' " Id. (citation omitted).

The Court held that "[e]ven were we to conclude that petitioner's counsel was unaware at the time

that petitioner's plea colloquy was constitutionally deficient, where the basis of a claim is available,

and other defense counsel have perceived and litigated that claim, the demands of comity and

finality counsel against labeling alleged unawareness of the objection as cause for a procedural

default." Id. at ---- n. 2, 118 S.Ct. at 1611 n. 2 (internal punctuation and citation omitted). As to the

second argument, the Supreme Court explained that "futility cannot constitute cause if it means

simply that a claim was unacceptable to that particular court at that particular time." Id. at ----, 118

S.Ct. at 1611 (quoting Engle v. Isaac, 456 U.S. 107, 130 n. 35, 102 S.Ct. 1558, 1573 n. 35, 71

L.Ed.2d 783 (1982)) (internal quotations omitted). We therefore must conclude that the reasons

proffered by Appellant do not establish cause for his failure to challenge his § 924(c) conviction on

direct appeal.


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        Appellant may still be able to avoid the procedural bar if he can show that the alleged error

"has probably resulted in the conviction of one who is actually innocent." Id. (quoting Murray v.

Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986)) (internal quotations

omitted). "[A]ctual innocence means factual innocence, not mere legal insufficiency." Id. (internal

quotations and citation omitted). Accordingly, Appellant must establish that "in light of all the

evidence, it is more likely than not that no reasonable juror would have convicted him." Id. (internal

quotations and citation omitted).

       The district court did not address Appellant's actual innocence claim and the present record

does not clearly resolve the issue. We therefore remand for the district court to hold a hearing to

determine the validity of Appellant's actual innocence claim. The Government will be permitted to

introduce admissible evidence at the hearing beyond the evidence it presented at the plea colloquy.

Id. at ---- - ----, 118 S.Ct. at 1611-12. Moreover, in assessing Appellant's claim of actual innocence,

the district court should heed the Supreme Court's instruction that "[i]n cases where the Government

has foregone more serious charges in the course of plea bargaining, petitioner's showing of actual

innocence must also extend to those charges." Id. at ----, 118 S.Ct. at 1612. If Appellant satisfies

the requirements for showing actual innocence, "he will then be entitled to have his defaulted

claim[s] ... considered on [their] merits." Id. at ----, 118 S.Ct. at 1612.

                                         III. CONCLUSION

       Although Appellant cannot avoid the procedural bar to his challenge to his § 924(c)

conviction under the cause and actual prejudice standard, the record is insufficient for us to

determine whether he can avoid the bar under the actual innocence standard. Accordingly, we




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remand the case for the district court to hold a hearing to determine whether Appellant is actually

innocent of the § 924(c) charge and therefore can avoid the procedural bar.

       VACATED and REMANDED.




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