Triestman v. U.S.

Decision Date28 August 1997
Docket NumberNo. 1270,D,1270
Citation124 F.3d 361
PartiesBen Gary TRIESTMAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 96-2563.
CourtU.S. Court of Appeals — Second Circuit

Larry W. Yackle, Boston University School of Law, Boston, MA (Daniel J. Meltzer, Cambridge MA, of counsel), for Petitioner-Appellant.

Elizabeth D. Collery, United States Department of Justice, Washington, DC (Sangita Rao, Department of Justice, Thomas J. Maroney, United States Attorney, Barbara D. Cottrell, Assistant United States Attorney, Northern District of New York, Syracuse, NY, of counsel), for Respondent-Appellee.

Before: CALABRESI and PARKER, Circuit Judges, and POLLAK, * District Judge.

CALABRESI, Circuit Judge:

This case involves the interaction between two recent substantial modifications in the criminal law--the Supreme Court's decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and Congress' enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214--each of which has spawned abundant litigation. See, e.g., Lee v. United States, 113 F.3d 73, 74 (7th Cir.1997) ("This is yet another case raising issues in the wake of Bailey v. United States ...."); Cockrum v. Johnson, 934 F.Supp. 1417, 1424 (E.D.Tex.1996) (noting that there have been "many recent decisions" interpreting the AEDPA). The fundamental question before us is both easy to state, and remarkably difficult to resolve: when Bailey establishes that a federal prisoner is actually innocent of the crime of which he was convicted, but the AEDPA would appear to bar the prisoner's petition for collateral relief pursuant to 28 U.S.C. § 2255, does the judicial system afford any recourse to the prisoner? We conclude that serious constitutional questions would arise if a person who can prove his actual innocence on the existing record--and who could not have effectively raised his claim of innocence at an earlier time--had no access to judicial review. Accordingly, we find that, while relief under § 2255 is no longer available, a prisoner in this situation is entitled to seek a writ of habeas corpus pursuant to 28 U.S.C. § 2241. We therefore decline to reconsider our prior decision, which refused to permit the prisoner to proceed with a petition for § 2255 relief.


In February 1992, the New York state police arrested Lawrence Tutt in Auburn, New York. Tutt, who was carrying the hallucinogenic drugs LSD and MDMA (known on the street as "Ecstasy"), agreed to cooperate with the police and identified Petitioner Ben Gary Triestman as his Ecstasy supplier. On April 21, 1992, acting on this information, the state police placed Triestman under arrest and executed search warrants at his residence and at his rural drug lab. Triestman was indicted and charged with two counts of narcotics conspiracy, five counts of substantive drug offenses, and four counts of using and carrying a firearm in connection with a drug trafficking offense, in violation of 18 U.S.C. § 924(c). 1

Triestman subsequently entered into a plea agreement with the government that required him to plead guilty to two counts of drug conspiracy in violation of 21 U.S.C. §§ 846 and 861, and one count of violating § 924(c). The plea agreement specified the conduct giving rise to the § 924(c) violation: "on April 21, 1992, the defendant possessed a At the plea hearing, the judge questioned Triestman as to the factual basis for his § 924(c) plea:

firearm ... in part, for the purpose of protecting himself and [his co-defendant] Anya Scheckley at the MDMA laboratory site as they were manufacturing the drug."

THE COURT: ... Tell me what it is that you did that makes you think you are guilty of that count.

TRIESTMAN: The situation was that Willow [a co-conspirator] had brought in a .22 caliber--I mean, .25 caliber pistol for me and said I hope this would make you feel a little more comfortable. And I said we already have a .22 rifle. Why is this necessary? And he said well, if you don't want it, you don't have to have it. And I said well, put it in a cabinet or a drawer. If you want it here, I guess you can have it here.

* * * * * *

THE COURT: And the rifle and the pistol were for purposes of what?

TRIESTMAN: Target practice basically.

THE COURT: For what purpose?

TRIESTMAN: Also to protect ourselves, I guess.

THE COURT: In connection with your drug manufacturing and distribution process?


The court accepted Triestman's plea of guilty and, on December 23, 1992, sentenced Triestman to serve concurrent terms of 63 months imprisonment for the drug conspiracy offenses and a mandatory consecutive 60 month term for the § 924(c) offense.

On direct appeal, Triestman argued, inter alia, that the district court had erroneously accepted his plea to the § 924(c) offense on the basis of an inadequate factual record. This court summarily affirmed. See United States v. Triestman, 996 F.2d 302 (2d Cir.1993) (unpublished table decision).

On May 9, 1994, Triestman filed the first of three pro se motions seeking collateral relief pursuant to 28 U.S.C. § 2255. He contended that his plea to the § 924(c) count was neither voluntary nor intelligent because he had entered into it under the mistaken belief that he could be convicted on the basis of the mere possession of a firearm. The district court denied the motion, and this court summarily affirmed. See Triestman v. United States, 60 F.3d 812 (2d Cir.1995) (unpublished table decision). On December 4, 1995, Triestman filed a petition for a writ of certiorari in the United States Supreme Court.

Two days later, while that certiorari petition was pending, the Supreme Court decided Bailey, in which it held that a defendant cannot be convicted of "using" a firearm under § 924(c) unless he "actively" employed the weapon. Bailey, --- U.S. at ----, 116 S.Ct. at 509. Prior to Bailey, and at the time of Triestman's guilty plea, it had been the law of this circuit that a defendant could be found guilty of using a firearm under § 924(c) if "[t]he circumstances surrounding the presence of a firearm in a place where drug transactions take place suggest that it was strategically located so as to be quickly and easily available for use during such a transaction." United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988). The Supreme Court rejected this interpretation: "Some might argue that the offender has 'actively employed' the gun by hiding it where he can grab and use it if necessary. In our view, 'use' cannot extend to encompass this action." Bailey, --- U.S. at ----, 116 S.Ct. at 508. Rather, explained the Court, "using" must be read more narrowly to encompass only "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id.

Triestman, still acting pro se, filed a supplemental brief in the Supreme Court addressing the effect of Bailey on his petition for certiorari. The United States filed a brief opposing certiorari. In that brief, the government argued that, even if Triestman was no longer guilty of "using" a firearm, he had pleaded guilty to all of the elements of "carrying" a firearm, such that his § 924(c) conviction remained valid. The Supreme Court denied certiorari without comment on April 22, 1996. See Triestman v. United On April 24, 1996, two days after the Supreme Court denied Triestman's petition for certiorari, the President signed the AEDPA into law. Among other things, that act amended both 28 U.S.C. § 2255 (which governs petitions for collateral relief by federal prisoners) and 28 U.S.C. § 2244 (which governs second and successive habeas corpus petitions). Most importantly for our purposes, the AEDPA added the following language to § 2255:

States, --- U.S. ----, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996). 2

A second or successive motion must be certified as provided in section 2244[ 3] by a panel of the appropriate 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.

Nine days after the AEDPA went into effect, Triestman filed another § 2255 motion in the district court, raising his Bailey argument (which had previously been made only in his supplemental pro se certiorari brief). 4 When he later learned of the requirement that his second or successive § 2255 petition had to be certified by the court of appeals before it could proceed in the district court On August 16, 1996, we responded to that letter by issuing an order in which we found that Triestman's Bailey claim did not appear to rely on the existence of newly discovered evidence or a new rule of constitutional law, and therefore did not seem to meet the literal requirements of § 2255. We noted, however, that the possibility that an actually innocent person--who could not have effectively raised his claim of innocence at an earlier time--might be held without recourse to the judicial system could raise serious constitutional questions. We further noted that Triestman's claim of innocence under Bailey might be cognizable in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3), or in a petition for a writ of error coram nobis pursuant to 28 U.S.C. § 1651. Since those options were potentially available, and since the requirements of § 2255 did not initially appear to have been met, we denied Triestman's motion for an order authorizing the district court to consider a successive § 2255 petition.

Triestman sent a letter to this court requesting certification.

Nevertheless, because we did...

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