UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50302
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES STEPHEN JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
April 13, 1999
Before GARWOOD, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:
James Stephen Jones (“Jones”), a federal prisoner, appeals the
denial of his pro se 28 U.S.C. § 2255 motion, in which he
challenges his conviction for using and carrying a firearm in
relation to the commission of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1). Jones, who pleaded guilty to
this crime, contends that there is an insufficient factual basis
for his § 924(c)(1) conviction in light of the Supreme Court’s
intervening decision in Bailey v. United States, 516 U.S. 137
(1995).
I.
In 1991, Jones was under investigation on suspicion that he
was operating a methamphetamine laboratory from his Winnebago motor
home. On April 3, 1991, federal agents from the Drug Enforcement
Agency were conducting surveillance on Jones’ Winnebago, which was
parked on a rural lot near Bellmead, Texas. While watching that
location the agents observed Jones leaving the rural lot in another
vehicle occupied by Daniel Ray Meier (“Meier”), who was later
indicted with Jones as a codefendant. The federal agents then
stopped Jones’ vehicle at a highway intersection, and soon noticed
that Jones and Meier smelled of chemicals used to manufacture
methamphetamine. A subsequent search of the car revealed several
rounds of ammunition for a .223 Ruger rifle.
While federal agents detained Jones and Meier, other federal
agents executed a search warrant on Jones’ Winnebago and a small
trailer parked at the same location. The search of the Winnebago
produced a .223 Ruger rifle, a .357 revolver, various chemicals and
chemical recipes, and other paraphernalia used to manufacture
methamphetamine. The search of the small trailer revealed a fully
constructed methamphetamine laboratory, including numerous
chemicals needed for the manufacture of methamphetamine. A later
search of Jones’ residence in Waco, Texas, uncovered several
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chemical books and recipes. Also, a Winchester rifle, a .25
caliber pistol, and .22 grams of methamphetamine were recovered
from Jones’ bedroom.
After the government presented those facts at Jones’ guilty
plea hearing, the district court accepted Jones’ plea to using and
carrying a firearm in violation of 18 U.S.C. § 924(c).1 The
district court subsequently sentenced Jones to 200 months
imprisonment, with a consecutive sentence of 60 months for the
§ 924(c) violation. On April 12, 1993, this Court denied Jones’
direct appeal in an unpublished opinion. United States v. Jones,
No. 91-8630 (5th Cir. Mar. 18, 1993). On December 16, 1996, Jones
filed a motion to vacate, set aside, or correct sentence pursuant
to 28 U.S.C. § 2255, challenging his firearm conviction. On April
8, 1997, the district court denied Jones’ habeas corpus petition on
the grounds that (1) his petition was time-barred, (2) his petition
was procedurally defaulted, and (3) there was sufficient evidence
supporting Jones’ guilty plea for using and carrying a firearm
during and in relation to a drug trafficking crime. After the
district court denied Jones’ motion for a certificate of
appealability, he moved this Court for a certificate, which we
1
Jones also pleaded guilty to possession of a firearm by
a felon in violation of 18 U.S.C. § 922(g); aiding and abetting in
the attempted manufacture of between 100 and 1000 grams of
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2; and constructive possession of a stolen firearm in violation
of 18 U.S.C. § 922(j).
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granted.
II.
We review the district court’s denial of Jones’ § 2255 motion
under two standards. The district court’s factual finding that
there is an adequate basis for the plea is reviewed for clear
error. United States v. Rivas, 85 F.3d 193, 194 (5th Cir.), cert.
denied, 117 S. Ct. 593 (1996). We review the district court’s
conclusions of law de novo. United States v. Faubion, 19 F.3d 226,
228 (5th Cir. 1994).
III.
In denying Jones’ habeas corpus petition, the district court
found that Jones’ petition was time-barred by recent amendments to
§ 2255, enacted as part of the Antiterrorism and Effective Death
Penalty Act of 1996, which established a one-year limitations
period for § 2255 motions. See 28 U.S.C. § 2255. The district
court’s conclusion is incorrect given the facts of this case.
Although § 2255 does contain a one-year time limit for filing
a § 2255 motion, we have consistently held that when a defendant’s
conviction became final before the enactment of AEDPA, the one-year
limitations period begins to run from April 24, 1996, the effective
date of AEDPA. United States v. Flores, 135 F.3d 1000, 1006 (5th
Cir. 1998), cert. denied, 119 S. Ct. 846 (1999). In this case,
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Jones was convicted in 1991, well before AEDPA’s effective date.
Thus, under our stated rule Jones had until April 24, 1997, to file
his § 2255 motion. Because Jones filed the motion on December 16,
1996, he did not exceed the one-year limitations period. The
district court’s finding that his petition is time-barred is
mistaken.
IV.
On appeal, Jones argues that his guilty plea must be vacated
because there is insufficient evidence in light of Bailey that he
“used or carried” a firearm. In Bailey, the Supreme Court held
that a person cannot be convicted of “use” under § 924(c)(1) for
merely possessing a firearm; the person must actively employ the
firearm. Bailey, 516 U.S. at 144. The district court rejected
Jones’ argument, finding that it was procedurally barred because
Jones never raised it on direct appeal.
It is well settled that when a habeas petitioner has
procedurally defaulted a challenge to his guilty plea by failing to
raise it on direct appeal, the claim may be raised in a § 2255
motion only if the petitioner can first demonstrate (1) cause and
prejudice, or (2) that he is “actually innocent” of the crime for
which he was convicted. See Bousley v. United States, 118 S. Ct.
1604 (1998); United States v. Torres, 163 F.3d 909, 911 (5th Cir.
1999). After the Supreme Court’s decision in Bousley, however,
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Jones cannot rely on a cause and prejudice argument to escape
procedural default. See United States v. Sanders, 157 F.3d 302,
305 (5th Cir. 1998). Thus, he must establish actual innocence in
order to secure relief.
Actual innocence means “factual innocence, and not mere legal
insufficiency.” Bousley, 118 S. Ct. at 1611. To prove actual
innocence, the petitioner “must demonstrate that, in light of all
the evidence, it is more likely than not that no reasonable juror
would have convicted him.” Id. (citations and quotations omitted).
Significantly, the government “is not limited to the existing
record to rebut any showing that petitioner might make.” Id. at
1611-12. The government is allowed “to present any admissible
evidence of petitioner’s guilt even if that evidence was not
presented during the petitioner’s plea colloquy and would not
normally have been offered before our decision in Bailey.” Id. at
1612.
Jones argues on appeal that he is actually innocent of both
using and carrying a firearm during and in relation to a drug
trafficking crime. In pressing that claim Jones contends that the
government presented no evidence at the plea colloquy that
establishes “use” under Bailey, or “carry” under Muscarello v.
United States, 524 U.S. 125 (1998). He underscores the fact that
he was stopped and arrested several miles from the nearest
recovered firearm.
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To rebut Jones’ claim of actual innocence, the government
refers to facts that were not presented at the plea colloquy;
specifically, testimony presented at the Jones’ preliminary hearing
and sentencing hearing, and facts contained in Jones’ presentence
report. According to the government, that additional evidence
demonstrates that Jones owned the Winnebago; that Jones used the
Winnebago to conduct a mobile methamphetamine operation; and that
on April 2, 1991 -- one day before Jones’ arrest -- Jones traveled
one mile east in the Winnebago. The government asserts that from
this circumstantial evidence it could reasonably be inferred that
Jones carried the two firearms recovered from the Winnebago during
and in relation to a drug trafficking crime.
Having reviewed the transcript of the plea colloquy, we find
no evidence that Jones actively “used” any of the four recovered
firearms in a manner consistent with Bailey. Similarly, looking
solely at the transcript of the plea colloquy, we find scant
evidence that Jones carried the two firearms recovered from his
bedroom, or that he carried the two firearms recovered from the
Winnebago. We note, however, that the district court denied Jones’
§ 2255 motion without considering Jones’ claim of actual innocence,
and without considering the additional evidence relied on by the
government in this appeal. Thus, in accordance with the dictates
of Bousley, we vacate the district court’s denial of Jones’ § 2255
motion, and remand this action to the district court for an
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evidentiary hearing where Jones and the government may present all
relevant evidence on the issue of Jones’ actual innocence.
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