                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 98-3999
                                 ________________

Adam Warner Dejan,                        *
                                          *
      Appellant,                          *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       District of Minnesota.
United States of America,                 *
                                          *
      Appellee.                           *

                                 ________________

                                 Submitted: October 19, 1999
                                     Filed: March 30, 2000
                                 ________________

Before MCMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                       ________________

HANSEN, Circuit Judge.

      Prior to the Supreme Court's rulings in Bailey v. United States, 516 U.S. 137
(1995), and Bousley v. United States, 523 U.S. 614 (1998), Adam Warner Dejan
pleaded guilty to using a firearm during and in relation to a drug trafficking offense.
See 18 U.S.C. § 924(c)(1). In return, the government agreed to drop a more serious
charge of possession with intent to distribute approximately 517 grams of crack
cocaine. See 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A). In his motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255, Dejan claimed actual innocence
of his gun conviction. The district court1 denied Dejan's motion, finding that although
Dejan's claim of actual innocence to the gun charge was not procedurally barred in light
of Bousley, he failed to prove actual innocence of the gun conviction pursuant to
Bailey. Although we respectfully disagree with the district court's reasoning, we
nevertheless affirm the district court's ultimate ruling that Dejan is not entitled to § 2255
relief.

                                      I. Background

        On May 29, 1993, police officers executed a search warrant at apartment #4 at
2824 Pillsbury Avenue South in Minneapolis, Minnesota. Defendant Dejan was found
in the apartment, along with his girlfriend who was the listed renter. During the search
of the apartment, police found a loaded nine millimeter semi-automatic pistol under the
pillow of the bed in which Dejan had been sleeping, a round of ammunition for a .410
gauge shotgun, two pagers, a digital scale, and $1566 in cash. The police also found
approximately 517 grams of crack cocaine and a .410 gauge sawed-off shotgun on the
porch attached to apartment #4 (apartment #3 was attached to the porch as well, and
two apartments on the lower level also had access to the porch).

       Dejan was indicted on June 23, 1993, on two counts: Count I for knowing and
intentional possession with intent to distribute 517 grams of crack cocaine, carrying a
minimum sentence of ten years in prison, and Count II for knowingly using and
carrying a nine millimeter pistol and a .410 gauge sawed-off shotgun during and in
relation to Count I, carrying a sentence of five years in prison. On October 7, 1993,
Dejan pleaded guilty to Count II in return for the government's agreeing to drop Count
I. At the guilty plea hearing, defense counsel stated that the defendant denied any
knowledge of the crack cocaine and shotgun but admitted to using the nine millimeter


       1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
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pistol to sell small amounts of drugs. Specifically, Dejan explained that he was selling
drugs ("Yes, I am a drug dealer."), that he purchased the pistol for protection in his
drug dealing, that during the drug sales he had the gun available for protection of
himself, his cocaine, and his money, but that he never actually carried the gun ("I didn't
actually carry the gun."). (Change of Plea Tr., Oct. 7, 1993, at 20-24.) The district
court accepted Dejan's guilty plea and sentenced him to five years in prison and three
years of supervised release.

       On May 16, 1996, after the Supreme Court's ruling in Bailey, Dejan filed a §
2255 motion alleging actual innocence of his § 924(c)(1) gun conviction (Count II).
After the Bousley decision was handed down, and after giving the government and the
defendant the opportunity to submit any additional facts or argument either wished to
make, the district court denied Dejan's § 2255 motion on September 29, 1998. The
district court held that Dejan's § 2255 motion was not procedurally barred based on
Bousley, but that on the merits, Dejan had not proven his assertion of actual innocence
under Bailey of his gun conviction. The district court therefore denied his § 2255
motion, and Dejan now appeals.

                                       II. Analysis

        In order to obtain relief, the defendant must show that one of his constitutional
rights has been violated. Dejan pleaded guilty to the gun charge, and thus he must
show that his guilty plea was constitutionally infirm. A guilty plea is constitutionally
invalid if it is not "intelligent," and it has long been recognized that a plea of guilty is
not "intelligent" unless the defendant first receives "real notice of the true nature of the
charge against him." Bousley, 523 U.S. at 618 (quoting Brady v. United States, 397
U.S. 742, 748 (1970), and Smith v. O'Grady, 312 U.S. 329, 334 (1941), respectively).
Just as the defendant did in Bousley, Dejan asserts a valid claim that his constitutional
rights were violated in that his plea of guilty to the gun charge was not knowing and
intelligent because he was misinformed by the district court as to the true nature of the

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charged gun offense. See Bousley, 523 U.S. at 618-19. However, just like the
defendant in Bousley, Dejan did not challenge the validity of his guilty plea on direct
appeal, and thus Dejan has procedurally defaulted his claim of a constitutionally invalid
guilty plea. See id. at 621. "Where a defendant has procedurally defaulted a claim by
failing to raise it on direct review, the claim may be raised in habeas only if the
defendant can first demonstrate either 'cause' and actual 'prejudice' or that he is 'actually
innocent.'" Id. at 622 (citations omitted). In this case, petitioner cannot show cause
and actual prejudice because his claim of actual innocence was available at the time of
his guilty plea, and even if the plea court was unlikely to accept his pre-Bailey "use"
argument, assumed futility is not considered "cause" for not raising the claim. See id.
at 622-23. Thus, we must decide whether Dejan has made the necessary showing of
actual innocence to get around his procedural default.

        Dejan argues that the record does not support a finding of "active employment"
of a firearm as required by Bailey, and thus he is "actually innocent" of his § 924(c)(1)
conviction for "using" a firearm during and in relation to drug trafficking. We agree.
Our review of the record convinces us that there is insufficient evidence to support a
conviction after Bailey for illegal "use" of a firearm. The facts show nothing more than
simple possession of a firearm plus an intent to use the firearm for illegal purposes.
The Supreme Court made it clear in Bailey that possession plus intent to use, even if
the firearm is stored near drugs or drug proceeds (or underneath a pillow presumably),
is not enough to meet the requirement of "active employment" of the firearm. See
Bailey, 516 U.S. at 149 ("Placement for later active use does not constitute 'use.'")
Dejan's conviction cannot be supported by an inference that he must have "used" the
gun (in the Bailey sense of the word) at some point during his drug trafficking activities
simply because he slept with the gun under his pillow and he bought the gun to protect
his drugs and drug proceeds. There is simply no evidence in the record, and the
government presented no evidence during the district court hearing, showing that Dejan
ever brandished, displayed, bartered, struck with, fired or attempted to fire, disclosed,
mentioned, or in any other way "actively employed" his gun during drug trafficking

                                             4
activities. See id. at 148-49. For that reason, we find that Dejan has met his burden
of proving actual innocence of his conviction under § 924(c)(1) for illegal "use" of
a firearm.

       A finding of actual innocence for Dejan of his gun conviction, however, does not
end our inquiry. In order to prevail, Dejan must not only show actual innocence of the
gun conviction for which he pleaded guilty, but he also must show actual innocence of
the more serious drug charge that was foregone by the government as part of his plea
bargain. See Bousley, 523 U.S. at 624. Furthermore, Dejan must show factual
innocence, not simply legal insufficiency of evidence to support a conviction. See id.
at 623. In fact, Dejan has the burden of showing that "in light of all the evidence, it is
more likely than not that no reasonable juror would have convicted him" of the
dismissed drug charge. Id. (internal quotations omitted).

       At the outset of this analysis, we reject Dejan's interpretation of the district
court's statement that "pursuant to [Bousley], defendant's petition is not barred." (R.
at 30). Dejan would have us construe the quoted language as a finding on the merits
by the district court that Dejan was actually innocent of both the gun count and the
dismissed drug charge. This we decline to do for several reasons. First of all, we think
the proper interpretation of the district court's order is that the "not barred by Bousley"
language only refers to Dejan's ability to attack the gun conviction. The district court
was simply saying that under the first step in Bousley--determining actual innocence
for the offense of conviction to which Dejan pleaded guilty--Dejan's actual innocence
claim as to the gun conviction was not procedurally barred by his failure to take a direct
appeal and could be considered on its merits. In addition, the district court was clear,
though we believe erroneous, in its holding that Dejan had not proven actual innocence
of his gun conviction, and the court said nothing about the dismissed drug charge.
Thus, we decline to accept Dejan's proposed interpretation.




                                            5
        As for the merits of Dejan's claim of actual innocence of the dismissed drug
charge, there are two reasons why it must fail. First, Dejan never actually raised his
actual innocence claim of the drug count in his original § 2255 petition, and even
though given the opportunity to do so, never amended his petition after the Bousley
ruling was handed down. We therefore find that Dejan's actual innocence claim on the
dismissed drug count has itself been procedurally defaulted because we generally
decline to hear arguments raised for the first time on appeal, and an exception to that
rule is not warranted in this case. See United States v. Dixon, 51 F.3d 1376, 1383 (8th
Cir. 1995).

       Second, even if we were to allow Dejan's claim to go forward, we find that
Dejan has failed to meet his burden of establishing actual innocence. Dejan had the
opportunity to introduce additional evidence that he was actually innocent of possessing
the 517 grams of crack cocaine with intent to distribute as charged in the dismissed
drug count, but he declined the opportunity, knowing full well that he had the burden
of proving actual innocence such that no reasonable juror could convict him of the
charge. Our review of the record has convinced us that there is ample evidence on
which a juror could reasonably convict Dejan for the charged but dismissed drug
offense. The crack cocaine and shotgun were found on the porch attached to apartment
#4's kitchen, Dejan's girlfriend said that she had seen Dejan with drugs in the apartment
and that he normally did not store the drugs inside the apartment, and Dejan himself
admitted to selling small amounts of cocaine, to owning the .410 gauge shotgun shell
found in the apartment (which matched the caliber of the sawed-off shotgun found with
the crack cocaine), and to buying the nine millimeter pistol for protection during his
drug trafficking activities. In addition, a digital scale was found in the apartment along
with two pagers. Dejan's evidence of actual innocence essentially consists of assertions
by his counsel that the 517 grams of crack cocaine and the shotgun were not Dejan's,
and arguments that the porch area was common to at least one other apartment and
could be accessed by an additional two apartments. Dejan falls far short of meeting his
burden to show that he is actually innocent of the more serious dismissed drug charge,

                                            6
and therefore his claim of a constitutionally defective guilty plea to the gun count
remains procedurally defaulted. See Bousley, 523 U.S. at 621-23.

                                   III. Conclusion

        For these reasons, we affirm the district court's denial of Dejan's request for
relief under 28 U.S.C. § 2255.

      A true copy.

             Attest:

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




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