United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 21, 2002 Decided April 9, 2002
No. 01-3073
In Re: Richard A. Smith
Petitioner
Appeal from the United States District Court
for the District of Columbia
(No. 89cr00036-03)
Kevin M. Schad argued the cause and filed the brief for
petitioner.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for respondent. With her on the brief were Roscoe C.
Howard Jr., U.S. Attorney, John R. Fisher and Roy W.
McLeese III, Assistant U.S. Attorneys. Mary-Patrice
Brown, Assistant U.S. Attorney, entered an appearance.
Before: Henderson, Randolph and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: For Richard A. Smith, the remedy
afforded under 28 U.S.C. s 2255 is inadequate. Seeking
authorization to file a second motion under 28 U.S.C. s 2255,
as amended by the Anti-Terrorism and Effective Death
Penalty Act of 1996 ("AEDPA")1, Smith demonstrates that
his conviction under 18 U.S.C. s 924(c) is unlawful in view of
the court's interpretation of the substantive provisions of that
statute. Nevertheless, the government contends, he fails to
make a prima facie showing under 28 U.S.C. s 2244(b)(3)(C)
as s 2255 requires. Smith has an alternative remedy, the
government urges, under 28 U.S.C. s 2241, and he is confined
in a district located in a circuit in which, the government
advises, he should prevail. Accordingly, we deny the applica-
tion for authorization to file a second s 2255 motion in the
district court without reaching the question whether, as Smith
contends, there is an "actual innocence" exception to AEDPA.
I.
Following the affirmance of his conviction for drug and
weapon offenses, United States v. Harris, 959 F.2d 246 (D.C.
Cir. 1992), Smith filed a motion under s 2255, seeking vaca-
tion of his conviction under 18 U.S.C. s 924(c) in light of
Bailey v. United States, 516 U.S. 137, 144 (1995). He with-
drew that motion, with permission of the district court. Nine
months later Smith filed a motion under s 2255 motion
seeking relief on the ground that the act of trading drugs for
guns did not constitute a violation of s 924(c). The district
denied the motion, and this court, in 1999, denied Smith's
request for a certificate of appealability. The following year,
Smith filed his present request for authorization to file a
second s 2255 motion in the district court in view of United
States v. Stewart, 246 F.3d 728 (D.C. Cir. 2001), which held, in
light of Bailey's clarification that "use" under s 924(c)(1)
means "active employment of the firearm by the defendant,"
that the receipt of a gun during a drug transaction is not an
offense under s 924(c). See id. at 733.
There is no question that Smith's s 924(c) conviction is no
longer valid. In Smith v. United States, 508 U.S. 223 (1993),
the Supreme Court held that the defendant's offer to sell his
__________
1 See Pub. L. 104-132, s 105, 110 Stat. 1220.
gun for narcotics constituted "use" of the gun under 924(c).
See id. at 228-29. Then, in Bailey, the Court not only
clarified that "active employment" is required under s 924(c),
but stated that a firearm can be used without being carried
when a defendant displays or barters a firearm without
handling it. See Bailey, 516 U.S. at 146. This court, in turn,
held in Stewart that merely "receiving" a gun during a drug
transaction is not active employment because the "recipient
has not employed the gun, availed himself of the gun, or
derived any service from the gun by simply trading his drugs
for it." Stewart, 246 F.3d at 731. The court contrasted the
facts in Stewart where the defendant had "bartered for a
firearm" with the fact in Smith that the defendant had
"barter[ed] with a firearm," using his gun to trade it for
cocaine. See Stewart, 246 F.3d at 731-32. The court thus
adopted the view expressed by the Seventh Circuit in United
States v. Westmoreland, 122 F.2d 431, 435 (7th Cir. 1997),
that "there is no grammatically correct way to express that a
person receiving a payment is thereby 'using' the payment."
See Stewart, 246 F.3d at 731-32 (quoting Westmoreland, 122
F.3d at 435). Like the defendant in Stewart, Smith received
guns in exchange for drugs that he and his co-defendant sold.
See Harris, 959 F.2d at 258. Because Stewart "is an authori-
tative statement of what the statute meant before as well as
after [its holding]," Smith is entitled to benefit from the
Stewart interpretation of s 924(c). See United States v.
McKie, 73 F.3d 1149, 1153 (D.C. Cir. 1996) (quoting Rivers v.
Roadway Express, Inc., 511 U.S. 298, 312-13 (1994)).
Under the language of the AEDPA statute, however, this
court's jurisdiction is limited to considering whether an appli-
cation for authorization to file a second s 2255 motion in the
district court makes a prima facie showing that the petitioner
is entitled to relief; only the district court has jurisdiction to
determine the merits of the motion once the circuit authorizes
it. See 28 U.S.C. s 2255 p 8; id. s 2244(b)(3)(A)-(D); Felker
v. Turpin, 518 U.S. 651, 664 (1996); Corrao v. United States,
152 F.3d 188, 191 (2d Cir. 1998); U.S. v. Bennett, 119 F.3d
468, 470 (7th Cir. 1997). To obtain authorization to file a
second s 2255 motion, "a second or successive motion must
be certified ... to contain--(1) newly discovered evidence
...; 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. s 2255 p 8. Our decision
in Stewart does not constitute new evidence. See In re
Dorsainvil, 119 F.3d 245, 247 (3d Cir. 1997). Neither is it a
new rule of constitutional law made retroactive by the Su-
preme Court. See Tyler v. Cain, 121 S.Ct. 2478, 2482 (2001).
Although the Supreme Court has ruled that Bailey is to be
retroactive, Bailey is a rule of statutory interpretation, not of
constitutional law. See Bousley v. U.S., 523 U.S. 614, 620
(1998).
The savings clause of s 2255 provides that if the "remedy
by motion is inadequate or ineffective to test the legality of
his detention," the prisoner may utilize s 2241 to collaterally
attack the legality of his conviction or sentence. See 28
U.S.C. s 2255 p 5. Varying standards have been adopted by
the circuits for determining when s 2255 is "inadequate or
ineffective." See Reyes-Requena v. U.S., 243 F.3d 893, 903-
04 (5th Cir. 2001) (surveying cases). See also In re Jones,
226 F.3d 328, 333-34 (4th Cir. 2000); Wofford v. Scott, 177
F.3d 1236, 1244 & n.3 (11th Cir. 1999); United States v.
Barrett, 178 F.3d 34, 52 (1st Cir. 1999); Triestman v. United
States, 124 F.3d 361, 377 (2d Cir. 1997); In re Dorsainvil, 119
F.3d at 251-52 (3d Cir.); cf. United States v. Hanser, 123
F.3d 922, 929-30 (6th Cir. 1997). Suffice it for the instant
case, the Seventh Circuit has explained that s 2255 "can
fairly be termed inadequate when it is so configured as to
deny a convicted defendant any opportunity for judicial recti-
fication of so fundamental a defect in his conviction as having
been imprisoned for a nonexistent offense." In re Davenport,
147 F.3d 605, 611 (7th Cir. 1998). The government states
that this is just such a case. See Respondent's Br. at 22-25;
Respondent's Supplemental Br. at 4, 6-7. Smith is actually
innocent, having been convicted on the basis of an incorrect
understanding of s 924(c), and s 2255 relief is unavailable to
him.
Smith may therefore file a petition for a writ of habeas
corpus under 28 U.S.C. s 2241 in the district in which he is
confined. See, e.g., In re Nwanze, 242 F.3d 521, 525 (3d Cir.
2001); Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 2001); In re
Jones, 226 F.3d at 334; Barrett, 178 F.3d at 50 n.10; In re
Davenport, 147 F.3d at 611-12; Triestman, 124 F.3d at 380;
Dorsainvil, 199 F.3d at 252. Smith maintains that the Sev-
enth Circuit, wherein he is confined, will deny him relief
under s 2241 in view of 28 U.S.C. s 2244(a), which prohibits a
writ of habeas corpus if "the legality of such detention has
been determined by a judge or court ... on a prior applica-
tion for a writ of habeas corpus, except as provided in section
2255," 28 U.S.C. s 2244(a). But the Seventh Circuit held in
Davenport that a prisoner in similar circumstances as Smith
is eligible to use the safety valve of s 2255 to file a petition
under s 2241. See Davenport, 147 F.3d at 610, 612.
Regarding s 924(c), the Seventh Circuit has held, in view of
the Supreme Court's decision in Bailey, that passively receiv-
ing a gun for drugs does not constitute "use" of a gun in a
drug offense under s 924(c). See Westmoreland, 122 F.3d at
435. In that case, the defendant received a gun from an
undercover agent. The Seventh Circuit observed that "the
defendant is on the passive side of the bargain. He received
the gun. He was paid with the gun. He accepted the gun.
But in no sense did he actively 'use' the gun.... A seller
does not 'use' a buyer's consideration." Id. at 435-36. Al-
though the Seventh Circuit noted that it "might well" view
the case differently had the transaction occurred between two
defendants, as the government could conceivably charge the
party receiving the gun with aiding and abetting the party
supplying it, id. at 436 n.1, our decision confirming Smith's
convictions does not indicate that the government charged
Smith with aiding and abetting, see Harris, 959 F.2d at 259-
60, and the government makes no such representation here
that he was.
The Seventh Circuit also left open how it would view a case
where the defendant requested the gun in payment for the
drugs. See Westmoreland, 122 F.3d at 436 n.1. In his 1999
application for a certificate of appealability, Smith referred to
testimony of the informant and the police to the effect that he
and his co-defendant Harris did not participate in the request
for drugs. But see Harris, 959 F.2d at 249. Be that as it
may, the government, in urging this court to invoke the safety
clause of s 2255, and thereby avoid addressing potential
constitutional issues that might arise were there no "actual
innocence" exception to AEDPA, has stated that under West-
moreland, "Seventh Circuit law should permit petitioner to
raise, and to prevail upon, his Section 924(c) claim." Respon-
dent's Supplemental Br. at 15. The court takes at face value
the government's representation, for the government will be
bound to argue in support of relief for Smith in the Seventh
Circuit. See New Hampshire v. Maine, 532 U.S. 742 (2001).
Should the government's interpretation of Seventh Circuit
law prove to be mistaken, Smith then may renew his conten-
tion in this court that there is an "actual innocence" exception
under AEDPA.
Accordingly, because Smith's other claim, that his life
sentence must be vacated pursuant to Appendi v. New Jer-
sey, 530 U.S. 466 (2000), also fails to establish a prima facie
showing, for the Supreme Court has not made Apprendi
retroactive for purposes of collateral review and the jury in
Harris was instructed to find the amount of drugs, we deny
the application for authorization to file a second s 2255
motion in the district court without reaching the question
whether there is an "actual innocence" exception to AEDPA.