Vial, In re

Decision Date16 June 1997
Docket NumberNo. 96-614,96-614
Citation115 F.3d 1192
PartiesIn re Avery W. VIAL, Movant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Lee W. Kilduff, Morchower, Luxton & Whaley, Richmond, VA, for Movant. Vicki S. Marani, U.S. Department of Justice, Washington, DC, for U.S. ON BRIEF: Michael Morchower, Morchower, Luxton & Whaley, Richmond, VA, for Movant. Janice McKenzie Cole, U.S. Attorney, John S. Bowler, Assistant U.S. Attorney, U.S. Department of Justice, Washington, DC, for U.S.

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER, HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL and MOTZ, Circuit Judges, sitting en banc.

Motion denied by published opinion. Judge WILKINS wrote the majority opinion, in which Chief Judge WILKINSON and Judges RUSSELL, WIDENER, ERVIN, NIEMEYER, WILLIAMS, and MOTZ join. Judge HAMILTON wrote an opinion concurring in the judgment, in which Judge MOTZ joins. Judge LUTTIG joins in the judgment. Judge HALL wrote a dissenting opinion, in which Judges MURNAGHAN and MICHAEL join.

OPINION

WILKINS, Circuit Judge:

We convened en banc to consider Avery W. Vial's request for permission to file a second or successive motion to vacate his sentence. See 28 U.S.C.A. § 2255 (West 1994), as amended by Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub.L. No. 104-132, sec. 105, 110 Stat. 1214, 1220. 1 Vial contends that the decision of the Supreme Court in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), establishes "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court" within the meaning of § 2255, thereby entitling him to permission to file a second or successive motion. 2 We disagree and accordingly deny Vial's request.

I.

In 1992, Vial was convicted of conspiracy to possess with the intent to distribute cocaine, see 21 U.S.C.A. § 846 (West Supp.1997), and of using or carrying a firearm during and in relation to a drug trafficking offense, see 18 U.S.C.A. § 924(c)(1) (West Supp.1997); he was sentenced to 157 months imprisonment. We subsequently affirmed the judgment on direct appeal. See United States v. Vial, 21 F.3d 426 (4th Cir.1994) (unpublished table decision) (per curiam).

In 1994, Vial filed a pro se motion to vacate his sentence pursuant to § 2255, challenging, inter alia, the sufficiency of the evidence supporting his § 924(c)(1) conviction. The district court denied the motion, concluding with respect to the § 924(c)(1) claim that it was procedurally barred because Vial had made the same argument on direct appeal and because his § 2255 motion did not allege an intervening change in the law. See-- Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974). We affirmed. See United States v. Vial, 43 F.3d 1469 (4th Cir.1994) (unpublished table decision) (per curiam).

In September 1996, Vial filed another § 2255 motion in federal district court, alleging that his § 924(c)(1) conviction was unconstitutional in light of Bailey. The district court dismissed the action without prejudice to allow Vial to seek permission from this court to file a second or successive motion as required by § 2255. Vial subsequently moved this court for the appropriate certification. In light of conflicting rulings within the circuit regarding whether § 2255 allows us to authorize the filing of a second or successive motion to vacate sentence that alleges the illegality of a § 924(c)(1) conviction under Bailey, we elected to consider Vial's request en banc. 3

II.

Chapter 153 of Title 28 of the United States Code provides a statutory framework for federal postconviction relief from judgments of conviction entered in federal and state courts. 4 Under this framework, individuals convicted of crimes in state courts seek federal habeas corpus relief through 28 U.S.C.A. § 2254. Those convicted in federal court are required to bring collateral attacks challenging the validity of their judgment and sentence by filing a motion to vacate sentence pursuant to 28 U.S.C.A. § 2255. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996); see also Davis, 417 U.S. at 343, 94 S.Ct. at 2303-04 (noting "that § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus"); United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 272, 96 L.Ed. 232 (1952) ("Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose [in enacting § 2255] was to minimize the difficulties encountered in habeas corpus proceedings by affording the same rights in another and more convenient forum."). When, however, § 2255 proves "inadequate or ineffective to test the legality of ... detention," a federal prisoner may seek a writ of habeas corpus pursuant to 28 U.S.C.A. § 2241 (West 1994). 5 28 U.S.C.A. § 2255.

The AEDPA effected a number of substantial changes regarding the availability of federal postconviction relief to individuals convicted of crimes in federal and state courts. Of particular importance here are the provisions of the AEDPA codifying and extending judicially constructed limits on the consideration of second and successive applications for collateral relief. 6 See Felker v. Turpin, --- U.S. ----, ----, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996). Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus or § 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals. See 28 U.S.C.A. §§ 2244(b), 2255. As pertinent to this case, § 2255 provides that a court of appeals may authorize the filing of a second or successive § 2255 motion only if the movant's application contains a claim based upon--

(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.A. § 2255. 7

Vial principally maintains that his application for permission to file a second or successive § 2255 motion satisfies the latter criterion. He asserts that in Bailey the Supreme Court created "a new rule of constitutional law" and that the Supreme Court has made the Bailey rule available in collateral review proceedings. We disagree with both of these assertions.

A.

In Bailey, the Supreme Court held that in order to convict a defendant of "using" a firearm within the meaning of § 924(c)(1), the Government must show that the defendant actively employed the weapon. Bailey, --- U.S. at ----, 116 S.Ct. at 505. Vial--whose § 924(c)(1) conviction was based on a pre-Bailey definition of use--maintains that Bailey amounts to a new rule of constitutional law and thus may form the basis for a second or successive § 2255 motion under the AEDPA. In making this argument, Vial concedes that the Bailey Court clearly considered itself to be engaged in statutory construction rather than constitutional rulemaking. See id. (explaining that "[w]e granted certiorari to clarify the meaning of 'use' under § 924(c)(1)"); id. at ----, 116 S.Ct. at 506 (noting that "[t]he meaning of statutory language" depends in part on the context in which the language is used) (internal quotation marks omitted). Indeed, the Bailey Court neither referred to, nor relied upon, any provision of the Constitution as support for its holding.

Nevertheless, Vial maintains, Bailey established a rule "of" constitutional law within the meaning of § 2255 in the sense that the holding in Bailey is derived from constitutional principles. Specifically, Vial asserts that the Bailey Court relied on the rule of lenity to guide its construction of the term "uses" in § 924(c)(1). Vial further posits that the rule of lenity "is anchored in at least four values of constitutional gravity: fair notice, majoritarian policy-making, federalism, and ... the separation of powers." Movant's Br. at 7. Thus, Vial argues, because Bailey is based on the rule of lenity, which is founded in turn upon constitutional principles, Bailey is a rule "of" constitutional law.

We need not analyze the constitutional underpinnings of the rule of lenity in order to reject Vial's argument for the simple reason that the Bailey Court did not even mention the rule of lenity, much less rely upon it. Moreover, when, as in Bailey, the meaning of a statute may be determined from an examination of its "language, context, and history," Bailey, --- U.S. at ----, 116 S.Ct. at 506, application of the rule of lenity is inappropriate, see Chapman v. United States, 500 U.S. 453, 463, 111 S.Ct. 1919, 1926, 114 L.Ed.2d 524 (1991) (explaining that the rule of lenity does not apply unless a statute remains ambiguous even after a court has considered every source available to aid in interpretation).

We hold that the decision of the Supreme Court in Bailey did not announce a new rule of constitutional law and accordingly may not form the basis for a second or successive motion to vacate sentence pursuant to 28 U.S.C.A. § 2255. In reaching this conclusion, we join the other circuit courts of appeals that have considered this question. See 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 (11th Cir.1996) (per curiam); Nunez v. United States, 96 F.3d 990, 992 (7th Cir.1996).

B.

We also reject Vial's argument that Bailey has been "made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C.A. § 2255. Vial acknowledges that the Supreme Court did not state...

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