F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS AUG 1 1997
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-7004
v. (D.C. No. 96-CV-28-S)
(EOK)
RUSSELL SULLIVAN,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Russell Sullivan was convicted by a jury of numerous drug and firearms
offenses. On appeal, we reversed and remanded for a new trial. See United
States v. Sullivan, 919 F.2d 1403 (10th Cir. 1990). On remand, Mr. Sullivan pled
guilty to conspiracy to manufacture amphetamine in violation of 21 U.S.C. § 846,
using or carrying a firearm during and in relation to a drug trafficking offense in
violation of 18 U.S.C. § 924(c), and being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Subsequently, the Supreme Court decided
Bailey v. United States, 116 S. Ct. 501 (1995), in which the Court rejected the
broad definition of “use” for purposes of section 924(c) employed by this circuit
at the time Mr. Sullivan pled guilty. He now brings this action under 28 U.S.C. §
2255, asserting that his conviction under section 924(c) cannot stand in light of
Bailey, and that his counsel after remand was ineffective with respect to the plea
proceedings. The district court denied relief. Mr. Sullivan appeals and we
affirm.
The basis of Mr. Sullivan’s ineffective assistance claim is his assertion that
under Bailey there was no factual basis for his plea of guilty to the section 924(c)
charge. 1 We have previously addressed the retroactive application of Bailey in a
1
Despite Mr. Sullivan’s guilty plea, he may assert that the factual basis for
his plea does not constitute a violation of section 924(c). See United States v.
Barnhardt, 93 F.3d 706, 708 (10th Cir. 1996). Bailey applies retroactively to
cases on collateral review. Id.
(continued...)
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section 2255 case when, as here, the defendant pled guilty to a charge that he
used or carried a firearm in violation of section 924(c). See United States v.
Barnhardt, 93 F.3d 706 (10th Cir. 1996). We held that the determination of such
a motion “depends on whether there is an adequate factual basis for his guilty
plea.” Id. at 709-10.
The plea colloquy reveals the following exchange between the district court
and Mr. Sullivan with respect to the section 924(c) charge.
[The court]: And what does that have to do with Count 1
[charging a drug trafficking offense]?
[Mr. Sullivan]: I carried [the gun] on me all the time.
[The court]: All the time what?
[Mr. Sullivan]: During the time that we were trans- porting
chemicals or manufacturing.
[The court]: Manufacturing what?
[Mr. Sullivan]: Amphetamine.
1
(...continued)
We note that Mr. Sullivan filed a prior action under section 2255 before the
Supreme Court decided Bailey. Under the Antiterrorism and Effective Death
Penalty Act, a petitioner may not file an second or successive motion under
section 2255 without first obtaining certification from a panel of this court that
his motion contains either newly discovered evidence establishing that no
reasonable factfinder would have found him guilty, or a new and retroactive rule
of constitutional law. See 28 U.S.C.A. § 2255 (West Supp. 1997). However, Mr.
Sullivan filed his second section 2255 motion on January 16, 1996, before the
new Act was signed into law on April 24, 1996. The Act therefore does not apply
to that motion. See Lindh v. Murphy, No. 96-6298, 1997 WL 338568, 65
U.S.L.W. 4557 (U.S. June 23, 1997). Under then-existing law, Mr. Sullivan has
shown cause for his failure to raise the claim earlier and we therefore proceed to
the issue of prejudice. See United States v. Holland, No. 96-1102, 1997 WL
364290, at *2-3 (10th Cir. July 2, 1997).
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Rec., vol. II, at 31.
In Bailey, the Supreme Court held that to satisfy the “use” prong of section
924(c), the evidence must be “sufficient to show an active employment of the
firearm.” 116 S. Ct. at 505. “The active-employment understanding of ‘use’
certainly includes brandishing, displaying, bartering, striking with, and most
obviously, firing or attempting to fire, a firearm.” Id. at 508. The definition does
not include “mere possession of a firearm by a drug offender at or near the site of
a drug crime.” Id.
Under this construction, it is clear that the factual basis for Mr. Sullivan’s
plea does not establish that he “used” the firearm within the meaning of Bailey.
However, Mr. Sullivan was charged with using or carrying a firearm during and in
relation to a drug trafficking offense. 2 The Court in Bailey stated that “a firearm
can be carried without being used, e.g., when an offender keeps a gun hidden in
his clothing throughout a drug transaction.” Id. at 507. Here, Mr. Sullivan
admitted he carried a gun on his person all the time he was transporting or
manufacturing amphetamine. These admitted facts are clearly a sufficient basis
for his plea of guilty to the charge of carrying a firearm during and in relation to a
2
Mr. Sullivan appears to argue that the government was required to
establish that he both used and carried the firearm. He is incorrect. “It is
hornbook law that a crime denounced in the statute disjunctively may be alleged
in an indictment in the conjunctive, and thereafter proven in the disjunctive.”
United States v. Gunter, 546 F.2d 861, 868-69 (10th Cir. 1976).
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drug offense. Accordingly, his claim that his counsel was ineffective during the
plea process is without merit. See United States v. Dixon, 1 F.3d 1080, 1084
(10th Cir. 1993) (when the underlying claim of error has no merit, the Sixth
Amendment claim fails as well).
Mr. Sullivan has failed to demonstrate the denial of a constitutional right
by showing the issues raised in his appeal are debatable among jurists; that a
court could resolve the issues differently; or that the questions deserve further
proceedings. The certificate of appealability is DENIED and the appeal is
DISMISSED. 28 U.S.C. § 2253(c)(2); Lennox v. Evans, 87 F.3d 431 (10th Cir.
1996).
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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