                                              FILED:    July 18, 2000

                                 PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 99-767




In Re: BYRON JONES, a/k/a Carl Lee, a/k/a B,

                                                                   Movant.



                                   ORDER



     Byron Jones seeks permission to file a second or successive

motion to vacate his sentence.      See 28 U.S.C.A. § 2255 (West Supp.

2000).   If we were to grant such permission, Jones would argue in

the district court that his convictions for using or carrying

firearms   during   a   drug   trafficking   offense,   see   18   U.S.C.A.

§ 924(c)(1) (West 2000), are invalid in light of the decision of

the United States Supreme Court in Bailey v. United States, 516

U.S. 137 (1995). Jones concedes that because his Bailey claim does

not rest on a new rule of constitutional law, he cannot satisfy the

limitations on second or successive § 2255 motions enacted by § 105

of the Antiterrorism and Effective Death Penalty Act (AEDPA) of

1996, Pub. L. No. 104-132, § 105, 110 Stat. 1214, 1220.        He argues,

however, that because he filed his first § 2255 motion prior to the
enactment of the AEDPA, application to him of amended § 2255 would

be impermissibly retroactive.                      Alternatively, Jones maintains that

his inability to raise his Bailey claim in a second or successive

§ 2255 motion makes that remedy “inadequate or ineffective to test

the   legality         of      his    detention,”        28   U.S.C.A.    §    2255,   thereby

entitling him to file a petition for a writ of habeas corpus

pursuant to 28 U.S.C.A. § 2241 (West 1994).                           For the reasons set

forth below, we conclude that application of the new “gatekeeping”

provisions        of       §    2255     to    bar       Jones’   Bailey       claim   is     not

impermissibly retroactive.                    We also hold, however, that under the

circumstances § 2255 is inadequate or ineffective to test the

legality of Jones’ detention, and accordingly, that he may file a

habeas corpus petition pursuant to § 2241.



                                                    I.

      In 1993, Jones was convicted of conspiracy to possess with the

intent   to       distribute           and    to   distribute     cocaine      base,    see    21

U.S.C.A.      §    846         (West    1999),       possession    with       the    intent    to

distribute cocaine base, see 21 U.S.C.A. § 841(a)(1) (West 1999),

and four counts of using and carrying a firearm during and in

relation      to       a       drug     trafficking        offense,      see    18     U.S.C.A.

§ 924(c)(1).           He was sentenced to 420 months imprisonment.                            We

affirmed the convictions on direct appeal, rejecting, inter alia,

Jones’ argument that the evidence was insufficient to support his


                                                    2
§ 924(c)(1) convictions.   See United States v. Jones, 16 F.3d 413

(4th Cir. 1994) (per curiam) (unpublished table decision).       In

February 1995, Jones filed a pro se motion to vacate his sentence

pursuant to § 2255.   The district court denied relief in June of

that year, and we affirmed, see United States v. Jones, 74 F.3d

1234 (4th Cir. 1996) (per curiam) (unpublished table decision).

     In December 1995, the Supreme Court held in Bailey that the

Government must prove active employment of a firearm in order to

convict under the “use” prong of § 924(c)(1).   See Bailey, 516 U.S.

at 143.   This holding overruled the prior law of this circuit,

which was that the Government could establish “use” of a firearm

under § 924(c)(1) by proving that “the firearm [was] present for

protection and to facilitate the likelihood of success, whether or

not it [was] actually used.”   United States v. Paz, 927 F.2d 176,

179 (4th Cir. 1991) (internal quotation marks omitted). Under this

standard, even constructive possession of a firearm in connection

with a drug trafficking offense was sufficient to establish “use.”

See id.

     On April 24, 1996, Congress enacted the AEDPA.     Among other

things, the AEDPA codified and extended judicially constructed

limits on second and successive collateral attacks on convictions.

Under the AEDPA, an individual must first obtain permission from

the appropriate circuit court of appeals before filing a second or




                                 3
successive § 2255 motion.         See 28 U.S.C.A. § 2255.             Such permission

may be granted only if the claim sought to be raised presents

             (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.

Id.

      In April 1997, Jones, again proceeding pro se, moved this

court for authorization to file a second or successive § 2255

motion, arguing, inter alia, that his § 924(c)(1) convictions were

invalid under Bailey. We denied the motion for authorization. See

generally In re Vial, 115 F.3d 1192, 1195-97 (4th Cir. 1997) (en

banc)    (holding   that    Bailey      did    not     establish      a    new    rule    of

constitutional law and had not been made retroactive to cases on

collateral review by the Supreme Court). In June 1998, Jones filed

another pro se motion for authorization, contending that the recent

decision of the Supreme Court in Bousley v. United States, 523 U.S.

614   (1998),   entitled    him    to    an        opportunity   to       challenge      his

§ 924(c)(1) convictions in the district court.                     See Bousley, 523

U.S. at 622-24 (recognizing that a federal prisoner may raise a

Bailey claim on collateral review).                 We again denied the motion.

      In November 1999, Jones filed a third pro se motion for

authorization,      again    seeking          to     overturn    his       §     924(c)(1)


                                          4
convictions under Bailey. Citing our recent decision in Mueller v.

Angelone, 181 F.3d 557 (4th Cir.), cert. denied, 120 S. Ct. 37

(1999), Jones argued that because he filed his first § 2255 motion

prior to the enactment of the AEDPA, application of the gatekeeping

provisions of amended § 2255 would be impermissibly retroactive.

We appointed counsel, instituted a formal briefing schedule, and

calendared the case for oral argument.          In his formal brief, Jones

(through counsel) makes two arguments.             First, he argues that

application    of   amended   §   2255    is   impermissibly   retroactive.

Alternatively, he maintains that § 2255, as amended by the AEDPA,

is inadequate or ineffective to test the legality of his detention,

and that he should therefore be entitled to file a petition for a

writ of habeas corpus         pursuant to 28 U.S.C.A. § 2241.          The

Government has filed a short brief agreeing with Jones’ position on

both issues.



                                    II.

     We first address Jones’ contention that application to him of

the gatekeeping provisions of amended § 2255 is impermissibly

retroactive.    We have stated that the provisions of the AEDPA

generally apply to cases filed after its effective date. See Brown

v. Angelone, 150 F.3d 370, 372 (4th Cir. 1998); see also Slack v.

McDaniel, 120 S. Ct. 1595, 1602 (2000) (noting that the Court held

in Lindh v. Murphy, 521 U.S. 320, 327 (1997), that the amendments


                                     5
effected by the AEDPA apply to habeas petitions filed after its

effective date).        Applying the AEDPA is inappropriate, however,

when doing so would have an impermissible retroactive effect.                 See

Mueller, 181 F.3d at 569; see also Brown, 150 F.3d at 373-74

(concluding that application of limitations period established by

the AEDPA to prisoners whose convictions became final before

enactment would be impermissibly retroactive).                  In determining

whether application of a new statute would have an impermissible

retroactive effect, we are guided by “familiar considerations of

fair   notice,   reasonable      reliance,      and   settled   expectations.”

Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994).                     As the

Supreme Court explained in Landgraf, “[a] statute does not operate

‘retrospectively’ merely because it is applied in a case arising

from   conduct    antedating      the     statute’s    enactment     or    upsets

expectations based in prior law.                Rather, the court must ask

whether the new provision attaches new legal consequences to events

completed   before      its   enactment.”       Id.   at   269-70   (citation   &

footnote omitted).        In Mueller, we interpreted this language to

mean that we will not apply the provisions of the AEDPA to cases

filed after its enactment when “to do so would attach new legal

consequences     such    that   the     party   affected    might   have    acted

differently had he known that his conduct would be subject to the

new law.”   Mueller, 181 F.3d at 569.             Mueller thus rejected the

position taken by at least one circuit court of appeals that


                                         6
application of the AEDPA is impermissibly retroactive whenever the

AEDPA mandates a different result than previous law.              See In re

Minarik, 166 F.3d 591, 600-01 (3d Cir. 1999).            Rather, Mueller

indicates that some form of reliance on pre-AEDPA law must exist in

order for there to be an impermissible retroactive effect.

      Those of our sister circuits that have adopted a “reliance”

requirement have interpreted the requirement in varying ways.               For

example, the Fifth and Seventh Circuits require a showing of actual

detrimental reliance.    See Graham v. Johnson, 168 F.3d 762, 783-86

(5th Cir. 1999), cert. denied, 120 S. Ct. 1830 (2000); Alexander v.

United States, 121 F.3d 312, 314 (7th Cir. 1997).                 The First

Circuit, although it has not actually decided the question, has

indicated that it would require not only actual reliance, but also

a showing that the reliance was objectively reasonable.              See Pratt

v. United States, 129 F.3d 54, 59 (1st Cir. 1997).             In contrast,

the   Sixth   Circuit   has   held   that   a   change   in    the    law   is

impermissibly retroactive when the litigant “might have acted

differently had he known of that new consequence.”            In re Hanserd,

123 F.3d 922, 931 (6th Cir. 1997).1


      1
        The Ninth Circuit has held that application of the
gatekeeping provisions of amended § 2255 is never impermissibly
retroactive because those provisions do not “impose a new duty or
disability with respect to the resolution of [a] first motion.”
United States v. Villa-Gonzalez, 208 F.3d 1160, 1163 (9th Cir.
2000) (per curiam). We disagree. The AEDPA amendment of § 2255
indisputably attaches a new legal consequence to the filing of a
first § 2255 motion:     rather than showing that a second or
successive motion is not an abuse of the writ, a movant must

                                     7
       As in Mueller, 181 F.3d at 569 n.6, we need not define the

appropriate    reliance    standard,     because   Jones   cannot   establish

reliance under any formulation.          In the first place, Jones has not

even attempted to demonstrate that he actually relied on the

continued existence of pre-AEDPA law in filing his first § 2255

motion.    Moreover, Jones cannot make a plausible showing that he

“might have acted differently had he known” that any subsequent

§ 2255 motion would be subject to the gatekeeping provisions.

Hanserd, 123 F.3d at 931.            There simply is no reason to believe

that, even if Jones had known that the gatekeeping provisions of

§ 2255 would be enacted, he would have forgone the possibility of

release from prison based on the claims raised in his first § 2255

motion on the supposition--surely an implausible one at the time--

that   a   change   in   the   law    would   subsequently   invalidate   his

§ 924(c)(1) convictions.         Moreover, it cannot be ignored that

Jones’ challenge to his § 924(c)(1) convictions could have been

raised on direct appeal and in his first § 2255 motion.                   See

Bousley, 523 U.S. at 621-22; see also Graham, 168 F.3d at 786

(concluding that habeas petitioner could not show that he might

have relied on pre-AEDPA law when claims could have been raised in

prior habeas petition).

       Because Jones has not shown that he relied in any fashion on

pre-AEDPA law, he cannot demonstrate that application of the


satisfy the more stringent gatekeeping standards.

                                        8
gatekeeping provisions of amended § 2255 have an impermissible

retroactive effect as applied to him.



                                         III.

      Jones   concedes       that   if    application       of   the    gatekeeping

provisions of amended § 2255 is not impermissibly retroactive,

those provisions mandate that we deny his request for permission to

file a second or successive § 2255 motion.              He maintains, however,

that his inability to file a second or successive § 2255 motion

makes that remedy inadequate or ineffective to test the legality of

his detention, thereby entitling him to file a petition for a writ

of habeas corpus under 28 U.S.C.A. § 2241.

      28 U.S.C.A. § 2241 allows a federal prisoner to seek a writ of

habeas corpus.      A habeas petition under § 2241 must, however, be

filed in the district in which the prisoner is confined.                     See id.

§ 2241(a). This requirement caused a number of practical problems,

among which were difficulties in obtaining records and taking

evidence in a district far removed from the district of conviction,

and   the   large   number    of    habeas      petitions   filed      in   districts

containing federal correctional facilities.                 See United States v.

Hayman, 342 U.S. 205, 212-14 (1952).              These practical problems led

Congress to enact § 2255, “which channels collateral attacks by

federal prisoners to the sentencing court (rather than to the court

in the district of confinement) so that they can be addressed more


                                          9
efficiently.”   Triestman v. United States, 124 F.3d 361, 373 (2d

Cir. 1997); see Hayman, 342 U.S. at 219.   Section 2255 thus was not

intended to limit the rights of federal prisoners to collaterally

attack their convictions and sentences.       See Davis v. United

States, 417 U.S. 333, 343 (1974) (noting that “§ 2255 was intended

to afford federal prisoners a remedy identical in scope to federal

habeas corpus”); Hayman, 342 U.S. at 219 (“Nowhere in the history

of Section 2255 do we find any purpose to impinge upon prisoners’

rights of collateral attack upon their convictions.”).         Indeed,

when § 2255 proves “inadequate or ineffective to test the legality

of ... detention,” a federal prisoner may seek a writ of habeas

corpus pursuant to § 2241.   28 U.S.C.A. § 2255.

      Jones seeks to invoke this “savings clause” as a means of

presenting his Bailey claim to a district court. He maintains that

the   gatekeeping   provisions--which   concededly   bar    him   from

presenting his Bailey claim in a second or successive § 2255

motion--render § 2255 “inadequate or ineffective.”         We conclude

that in a limited number of circumstances, like those presented

here, § 2255 as amended by the AEDPA is inadequate or ineffective

to test the legality of the detention of a federal prisoner.        In

such cases, the prisoner may file a petition for a writ of habeas

corpus in the district of confinement pursuant to § 2241.

      It is beyond question that § 2255 is not inadequate or

ineffective merely because an individual is unable to obtain relief


                                10
under that provision.      See, e.g., Charles v. Chandler, 180 F.3d

753, 756 (6th Cir. 1999) (per curiam); Vial, 115 F.3d at 1194 n.5.

A   contrary   rule   would   effectively    nullify    the   gatekeeping

provisions.    See United States v. Barrett, 178 F.3d 34, 50 (1st

Cir. 1999), cert. denied, 120 S. Ct. 1208 (2000); In re Davenport,

147 F.3d 605, 608 (7th Cir. 1998).       Nevertheless, there must exist

some circumstance in which resort to § 2241 would be permissible;

otherwise, the savings clause itself would be meaningless.             See

Barrett, 178 F.3d at 51; Davenport, 147 F.3d at 608.

     Since the decision in Bailey and the enactment of the AEDPA,

several circuit courts of appeals have addressed the question of

whether § 2255 is inadequate or ineffective to test the legality of

the detention of an individual who was convicted under an improper

definition of the “use” prong of § 924(c)(1).          These courts have

uniformly concluded that § 2255 may be inadequate or ineffective in

certain   circumstances.      See   Davenport,   147   F.3d   at   610-12;

Triestman, 124 F.3d at 376-80; In re Dorsainvil, 119 F.3d 245, 251-

52 (3d Cir. 1997).2    In each of these cases, the court has noted

that the prisoner’s first § 2255 motion was filed prior to the

decision in Bailey, at a time when it would have been futile to

challenge the then-prevailing interpretation of the “use” prong of

§ 924(c)(1).     These courts further have observed that Bailey


     2
       See also Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir.
1999) (identifying circumstances in which § 2255 is inadequate or
ineffective in case not involving Bailey claim).

                                    11
establishes that a prisoner whose conviction rests on an improper

definition    of   “use”       is    incarcerated       for   conduct    that   is   not

criminal,    and   that       a    Bailey    claim     is   properly    considered    on

collateral review. These courts have held that under these limited

circumstances, § 2255 is inadequate to test the legality of the

prisoner’s detention, and accordingly that the prisoner may file a

habeas petition under § 2241.3

     We agree with the rationale and holdings of these courts.

Accordingly, we conclude that § 2255 is inadequate and ineffective

to test the legality of a conviction when:                      (1) at the time of

conviction, settled law of this circuit or the Supreme Court

established the legality of the conviction; (2) subsequent to the

prisoner’s direct appeal and first § 2255 motion, the substantive

law changed such that the conduct of which the prisoner was

convicted is deemed not to be criminal; and (3) the prisoner cannot

satisfy the gatekeeping provisions of § 2255 because the new rule

is not one of constitutional law.

     Applying this holding to Jones’ case, we conclude that he is

entitled    to   file     a       habeas    petition    in    the   district    of   his

confinement pursuant to § 2241. Jones was convicted of four counts


     3
       Importantly, neither Davenport, Treistman, nor Dorsainvil
holds that § 2255 is inadequate or ineffective on the basis that
the movant’s Bailey claim would satisfy pre-AEDPA abuse of the writ
standards.    Rather, these courts have focused on the more
fundamental defect presented by a situation in which an individual
is incarcerated for conduct that is not criminal but, through no
fault of his own, has no source of redress.

                                             12
of violating § 924(c)(1) based on the discovery of four firearms in

a locked closet.   The firearms were found during the course of a

search that also resulted in the discovery of a quantity of crack

cocaine in another part of the apartment.   Under the settled law of

this circuit at the time of Jones’ conviction, the evidence was

sufficient to support a conclusion that Jones “used” the guns

during and in relation to a drug trafficking offense.       However,

under Bailey, mere possession of firearms during and in relation to

a drug trafficking offense does not constitute “use” within the

meaning of § 924(c)(1); thus, Jones is incarcerated for conduct

that is not criminal.4   Finally, Bailey was decided after Jones’

appeal and after the decision on his first § 2255 motion.



                               IV.

     For the reasons set forth above, we conclude that application

of the gatekeeping provisions of 28 U.S.C.A. § 2255, as amended by

the AEDPA, is not impermissibly retroactive. However, we hold that




     4
       Indeed, under the facts presented Jones could not even have
been convicted of “carrying” the firearms. See United States v.
Sheppard, 149 F.3d 458, 463 (6th Cir. 1998) (explaining that
“[p]ossession of a firearm is distinguishable from carrying a
firearm, and is not enough to establish liability under § 924(c)”);
cf. United States v. Harris, 183 F.3d 313, 318 (4th Cir.) (holding
that defendant could not demonstrate actual innocence of carrying
firearm during and in relation to a drug trafficking offense when
a weapon was found in nightstand of hotel room rented for the
purpose of drug trafficking), cert. denied, 120 S. Ct. 550 (1999).

                                13
under   the    circumstances,   amended      §    2255   is   inadequate    or

ineffective to test the legality of Jones’ conviction.

     Entered    at   the   direction    of       Judge   Wilkins,   with   the

concurrences of Judge Murnaghan and Judge Williams.



                                        FOR THE COURT



                                        ___________________________
                                             Clerk




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