F I L E D
United States Court of Appeals
Tenth Circuit
APR 12 2000
PATRICK FISHER
Clerk
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
KEVIN HAUGH,
Petitioner-Appellant,
v. No. 99-3333
WARDEN BOOKER,
Respondent-Appellee,
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 98-3018-RDR)
SUBMITTED ON THE BRIEFS:
Kevin Haugh, Pro Se.
Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
SEYMOUR, Chief Judge.
Kevin Haugh pled guilty in federal district court in Massachusetts to one
count of conspiracy to commit murder in violation of 18 U.S.C. § 1959(a)(5), and
one count of using and carrying a firearm, or aiding and abetting the use and
carrying of a firearm, in violation of 18 U.S.C. § 924(c) and § 2. He is presently
confined in Leavenworth, Kansas. He filed this pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 in the federal district court in Kansas
challenging his firearms conviction on the basis of the Supreme Court’s decision
in Bailey v. United States, 516 U.S. 137 (1995). The district court ruled that Mr.
Haugh could not proceed under section 2241 because 28 U.S.C. § 2255 was the
appropriate remedy, and dismissed the petition. Mr. Haugh appeals and we
affirm, albeit on different grounds than those relied on by the district court. 1
I
“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather
than its validity and must be filed in the district where the prisoner is confined.”
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). “A 28 U.S.C. § 2255 petition
attacks the legality of detention, and must be filed in the district that imposed the
1
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)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
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sentence.” Id. (citations omitted). Section 2255 specifically
prohibits a district court from entertaining an application for a writ of
habeas corpus on behalf of a prisoner who is authorized to apply for
relief by motion pursuant to § 2255 “if it appears that the applicant has
failed to apply for relief, by motion, to the court which sentenced him, or
that such court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the legality of his
detention.”
Id. (quoting 28 U.S.C. § 2255).
It is undisputed that Mr. Haugh has never filed a section 2255 motion with the
sentencing court in Massachusetts. The district court held relief under that section is
now barred because Mr. Haugh failed to file in Massachusetts federal court within the
one-year limitation period provided by the Antiterrorism and Effective Death Penalty
Act (AEDPA), which the court held in this case would have expired on April 24,
1997, one year after the effective date of the Act. 2 The court went on to hold that
section 2255 is not rendered inadequate or ineffective merely because such relief is
procedurally barred, and dismissed the motion.
We begin our consideration of this appeal with a chronology of relevant events.
Mr. Haugh was convicted by a guilty plea in June 1995. The Supreme Court
2
Mr. Haugh originally asserted that a section 2255 motion would be barred
under In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). In response the government
pointed out that Dorsainvil dealt with successive petitions and was thus not
relevant, and also noted that the claim might nonetheless be time barred. Mr.
Haugh then argued to the district court that relief under section 2241 was
appropriate because a section 2255 motion would be barred by the limitation
period.
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handed down its decision in Bailey in December of that year. Because Bailey
vacated a conviction on direct appeal, however, the Court in that opinion did not
address whether the issue could be raised on collateral review. See United States v.
Lloyd, 188 F.3d 184, 186 (3d Cir. 1999). Two and a half years later, on January 16,
1998, Mr. Haugh filed this petition asserting a collateral challenge to his firearms
conviction under Bailey. In May 1998, the Supreme Court resolved a split in the
circuits and held that a defendant may raise a Bailey claim on collateral review. See
Bousley v. United States, 523 U.S. 614, 621 (1998).
The limitation period provided by AEDPA for section 2255 motions states in
pertinent part that it shall run from the latest of, inter alia, “the date on which the
right asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases
on collateral review.” 28 U.S.C. § 2255(3) (emphasis added). In Bailey, the Supreme
Court recognized for the first time a defendant’s right to be free of criminal liability
under section 924(c)(1) for conduct that had previously supported a conviction in
virtually every circuit, thus recognizing a new right within the meaning of section
2255(3). See United States v. Valdez, 195 F.3d 544, 547 (9th Cir. 1999); Lloyd, 188
F.3d at 187. Not until its decision in Bousley, however, did the Court make its
decision retroactively applicable to cases on collateral appeal. The one-year
limitation period provided by section 2255(3) therefore arguably did not begin to run
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on collateral Bailey claims until the decision in Bousley was handed down on May 18,
1998. See Valdez, 195 F.3d at 548; Lloyd, 188 F.3d at 188.
There appears to be a split in the circuits over whether the one-year limitation
period in section 2255(3) begins to run when the Supreme Court holds a new right
applicable on collateral review, or whether retroactive application by the Court of
Appeals for the circuit encompassing the district court in which a prisoner was
sentenced would suffice. See Lloyd, 188 F.3d at 188 & n.10 (citing cases). We need
not address this issue, however, because the First Circuit, the circuit in which Mr.
Haugh was sentenced, had not taken a position on the retroactivity of Bailey prior to
the Court’s decision in Bousley. See United States v. Joseph, 109 F.3d 34, 36 & n.2
(1st Cir. 1997) (noting issue but not reaching it). 3 Thus, because Mr. Haugh filed the
instant proceeding before Bousley was decided, if his pro se petition is properly
construed as seeking relief under section 2255 it might well be considered timely in
the First Circuit. See Valdez, 195 F.3d at 548 (section 2255 motion filed before
Bousley timely). We thus agree with the district court that section 2255 is the
appropriate remedy, but disagree with the court’s conclusion that the action would
necessarily have been time-barred in the First Circuit had it been filed there instead of
in Kansas, which is in the Tenth Circuit.
3
In our circuit, on the other hand, we held in 1996 in United States v.
Barnhardt, 93 F.3d 706 (10th Cir. 1996), that Bailey retroactively applies to cases
on collateral review.
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II
Because a section 2255 motion must be brought in the district in which the
defendant was sentenced, the district court here lacked jurisdiction. Jurisdictional
defects that arise when a suit is filed in the wrong federal district may be cured by
transfer under the federal transfer statute, 28 U.S.C. § 1631, which requires a court to
transfer such an action “if the transfer is in the interest of justice.” Federal Deposit
Ins. Corp. v. McGlamery, 74 F.3d 218, 220 (10th Cir. 1996). Mr. Haugh would now
be time-barred if we upheld the dismissal and he had to file a new proceeding in the
sentencing court in Massachusetts, a factor which the courts have recognized as
militating in favor of transferring in the interest of justice. 4 See Coleman v. United
States, 106 F.3d 339, 341 (10th Cir. 1997) (factors warranting transfer include finding
that new action would be barred as untimely and fact that original action filed in good
faith). See also Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999). Nonetheless, as
the court recognized in Phillips, a court is authorized to consider the consequences of
a transfer by taking “a peek at the merits” to avoid raising false hopes and wasting
judicial resources that would result from transferring a case which is clearly doomed.
Id. at 610-11. As we discuss briefly below, our quick look at the merits here
convinces us that Mr. Haugh’s request for relief is without merit.
4
We note that a motion to transfer is not necessary in view of the
mandatory language of section 1631. See Hays v. Postmaster Gen. of United
States, 868 F.2d 328, 331 (9th Cir. 1989).
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Mr. Haugh seeks relief under Bailey from his guilty plea to using or carrying a
firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). He
argues that his conduct was no longer criminal after the Court in Bailey set out the
elements of using a firearm under section 924(c). The record contains no evidence
that Mr. Haugh brought a direct appeal challenging the sufficiency of the evidence
under Bailey, or that he has shown cause and prejudice for his failure to do so.
Consequently, he would only be entitled to relief by showing that he is actually
innocent. See Bousley, 523 U.S. at 623.
Significantly, the sentencing judge made clear at Mr. Haugh’s plea proceeding
that he could be found guilty of aiding and abetting the use or carrying of a firearm.
The government set out as the basis for the charge the following facts, which Mr.
Haugh agreed were true. Mr. Haugh, another person, and the victim were together in
a parked car when, on a prearranged signal, Mr. Haugh turned up the car radio as the
other person shot the victim with a revolver and killed him instantly. Mr. Haugh and
the other person put the body of the victim in the trunk of the car and later dumped
the body in a parking lot.
The conduct by the third person is indisputably sufficient to establish active
deployment of a firearm so as to satisfy the use requirement of section 924(c) under
Bailey, and it is also clear he carried a firearm within the meaning of the statute. Mr.
Haugh’s conduct is sufficient to establish his liability as an aider and abetter of the
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third person by his knowing facilitation of the use and carrying of the firearm in
connection with the murder. See Santoro v. United States, 187 F.3d 14, 17 (1st Cir.
1999) (rejecting section 2255 challenge to conviction for aiding and abetting the use
of a firearm in light of Bailey and Bousley). 5 Accordingly, Mr. Haugh’s argument
under Bailey is without merit and transfer of the proceeding would therefore not be in
the interest of justice.
We AFFIRM the judgment of the district court dismissing the action for lack
of jurisdiction.
“Bailey did not alter the required elements for aiding and abetting.”
5
Badamo v. United States, No. 99-1081, 1999 WL 1338076, at **1 (1st Cir. Sept.
16, 1999) (citing Wright v. United States, 139 F.3d 551, 552 (7th Cir. 1998)).
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