Dorsainvil, In re

• Decision Date: 15 August 1997
• Docket Number: No. 96-8074,96-8074
• Parties: In re Ocsulis DORSAINVIL, Petitioner.
• Court: U.S. Court of Appeals — Third Circuit

Page 245

119 F.3d 245

In re Ocsulis DORSAINVIL, Petitioner.

No. 96-8074.

United States Court of Appeals, Third Circuit.

Argued May 1, 1997.

Decided July 23, 1997.

As Amended Aug. 15, 1997.

James D. Crawford (Argued), Wendy Beetlestone, Joseph T. Lukens, Schnader Harrison Segal & Lewis, Philadelphia, PA, for Petitioner.

Elizabeth D. Collery (Argued), United States Department of Justice, Appellate Section, Criminal Division, Washington, DC, David M. Barasch, United States Attorney, Middle District of Pennsylvania, Dennis C. Pfannenschmidt, Assistant United States Attorney, Middle District of Pennsylvania, for Respondent.

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

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's first petition was denied on the merits, the Supreme Court issued its opinion in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (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 § 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, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (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.

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." --- U.S. at ----, 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 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, 115 F.3d 1192, 1195 (4th Cir. 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 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, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Barnhardt, 93 F.3d at 709.

                (11th Cir.1996)(per curiam );  Nunez v. United States, 96 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
                

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 legally innocent as a result of a previously unavailable statutory...