In Re: Byron Jones

• Citation: 226 F.3d 328
• Decision Date: 18 July 2000
• Docket Number: No. 99-767,99-767
• Parties: (4th Cir. 2000) In Re: BYRON JONES, a/k/a Carl Lee, a/k/a B, Movant. . FILED:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 328

226 F.3d 328 (4th Cir. 2000)

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

No. 99-767.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

FILED: July 18, 2000.

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 "gate keeping" 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 § 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 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) 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 gate keeping 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 gate keeping 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 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 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

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 gate keeping provisions. Hanserd, 123 F.3d at 931. There simply...