In Re: Jones v.
I.
In 1993, Jones was convicted of conspiracy to possess with the intent to distribute and to distribute cocaine base, see
In December 1995, the Supreme Court held in Bailey that the Government must prove active employment of a firearm in order to convict under the “use” prong of § 924(c)(1). See Bailey, 516 U.S. at 143, 116 S.Ct. 501. This holding overruled the prior law of this circuit, which was that the Government could establish “use” of a firearm under § 924(c)(1) by proving that “the firearm [was] present for protection and to facilitate the likelihood of success, whether or not it [was] actually used.” United States v. Paz, 927 F.2d 176, 179 (4th Cir. 1991) (internal quotation marks omitted). Under this standard, even constructive possession of a firearm in connection with a drug trafficking offense was sufficient to establish “use.” See id.
On April 24, 1996, Congress enacted the AEDPA. Among other things, the AEDPA codified and extended judicially constructed limits on second and successive collateral attacks on convictions. Under the AEDPA, an individual must first obtain permission from the appropriate circuit court of appeals before filing a second or successive § 2255 motion. See
(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.
In April 1997, Jones, again proceeding pro se, moved this court for authorization to file a second or successive § 2255 motion, arguing, inter alia, that his § 924(c)(1) convictions were invalid under Bailey. We denied the motion for authorization. See generally In re Vial, 115 F.3d 1192, 1195-97 (4th Cir.1997) (en banc) (holding that Bailey did not establish a new rule of constitutional law and had not been made retroactive to cases on collateral review by the Supreme Court). In June 1998, Jones filed another pro se motion for authorization, contending that the recent decision of the Supreme Court in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), entitled him to an opportunity to challenge his § 924(c)(1) convictions in the district court. See Bousley, 523 U.S. at 622-24, 118 S.Ct. 1604 (recognizing that a federal prisoner may raise a Bailey claim on collateral review). We again denied the motion.
II.
We first address Jones’ contention that application to him of the gatekeeping provisions of amended § 2255 is impermissibly retroactive. We have stated that the provisions of the AEDPA generally apply to cases filed after its effective date. See Brown v. Angelone, 150 F.3d 370, 372 (4th Cir.1998); see also Slack v. McDaniel, ___ U.S. ___, 120 S.Ct. 1595, 1602, 146 L.Ed.2d 542 (2000) (noting that the Court held in Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), that the amendments effected by the AEDPA apply to habeas petitions filed after its effective date). Applying the AEDPA is inappropriate, however, when doing so would have an impermissible retroactive effect. See Mueller, 181 F.3d at 569; see also Brown, 150 F.3d at 373-74 (concluding that application of limitations period established by the AEDPA to prisoners whose convictions became final before enactment would be impermissibly retroactive). In determining whether application of a new statute would have an impermissible retroactive effect, we are guided by “familiar considerations of fair notice, reasonable reliance, and settled expectations.” Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). As the Supreme Court explained in Landgraf, “[a] statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute‘s enactment or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Id. at 269-70, 114 S.Ct. 1483 (citation & footnote omitted). In Mueller, we interpreted this language to mean that we will not apply the provisions of the AEDPA to cases filed after its enactment when “to do so would attach new legal consequences such that the party affected might have acted differently had he known that his conduct would be subject to the new law.” Mueller, 181 F.3d at 569. Mueller thus rejected the position taken by at least one circuit court of appeals that application of the AEDPA is impermissibly retroactive whenever the AEDPA mandates a different result than previous law. See In re Minarik, 166 F.3d 591, 600-01 (3d Cir.1999). Rather, Mueller indicates that some form of reliance on pre-AEDPA law must exist in order for there to be an impermissible retroactive effect.
Those of our sister circuits that have adopted a “reliance” requirement have interpreted the requirement in varying ways. For example, the Fifth and Seventh Circuits require a showing of actual detrimental reliance. See Graham v. Johnson, 168 F.3d 762, 783-86 (5th Cir.1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1830, 146 L.Ed.2d 774 (2000); Alexander v. United States, 121 F.3d 312, 314 (7th Cir.1997). The First Circuit, although it has not actually decided the question, has indicated that it would require not only actual reliance, but also a showing that the reliance
As in Mueller, 181 F.3d at 569 n. 6, we need not define the appropriate reliance standard, because Jones cannot establish reliance under any formulation. In the first place, Jones has not even attempted to demonstrate that he actually relied on the continued existence of pre-AEDPA law in filing his first § 2255 motion. Moreover, Jones cannot make a plausible showing that he “might have acted differently had he known” that any subsequent § 2255 motion would be subject to the gatekeeping provisions. Hanserd, 123 F.3d at 931. There simply is no reason to believe that, even if Jones had known that the gatekeeping provisions of § 2255 would be enacted, he would have forgone the possibility of release from prison based on the claims raised in his first § 2255 motion on the supposition—surely an implausible one at the time—that a change in the law would subsequently invalidate his § 924(c)(1) convictions. Moreover, it cannot be ignored that Jones’ challenge to his § 924(c)(1) convictions could have been raised on direct appeal and in his first § 2255 motion. See Bousley, 523 U.S. at 621-22, 118 S.Ct. 1604; see also Graham, 168 F.3d at 786 (concluding that habeas petitioner could not show that he might have relied on pre-AEDPA law when claims could have been raised in prior habeas petition).
Because Jones has not shown that he relied in any fashion on pre-AEDPA law, he cannot demonstrate that application of the gatekeeping provisions of amended § 2255 have an impermissible retroactive effect as applied to him.
III.
Jones concedes that if application of the gatekeeping provisions of amended § 2255 is not impermissibly retroactive, those provisions mandate that we deny his request for permission to file a second or successive § 2255 motion. He maintains, however, that his inability to file a second or successive § 2255 motion makes that remedy inadequate or ineffective to test the legality of his detention, thereby entitling him to file a petition for a writ of habeas corpus under
Jones seeks to invoke this “savings clause” as a means of presenting his Bailey claim to a district court. He maintains that the gatekeeping provisions—which concededly bar him from presenting his Bailey claim in a second or successive § 2255 motion—render § 2255 “inadequate or ineffective.” We conclude that in a limited number of circumstances, like those presented here, § 2255 as amended by the AEDPA is inadequate or ineffective to test the legality of the detention of a federal prisoner. In such cases, the prisoner may file a petition for a writ of habeas corpus in the district of confinement pursuant to § 2241.
It is beyond question that § 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision. See, e.g., Charles v. Chandler, 180 F.3d 753, 756 (6th Cir.1999) (per curiam); Vial, 115 F.3d at 1194 n. 5. A contrary rule would effectively nullify the gatekeeping provisions. See United States v. Barrett, 178 F.3d 34, 50 (1st Cir.1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000); In re Davenport, 147 F.3d 605, 608 (7th Cir.1998). Nevertheless, there must exist some circumstance in which resort to § 2241 would be permissible; otherwise, the savings clause itself would be meaningless. See Barrett, 178 F.3d at 51; Davenport, 147 F.3d at 608.
Since the decision in Bailey and the enactment of the AEDPA, several circuit courts of appeals have addressed the question of whether § 2255 is inadequate or ineffective to test the legality of the detention of an individual who was convicted under an improper definition of the “use” prong of § 924(c)(1). These courts have uniformly concluded that § 2255 may be inadequate or ineffective in certain circumstances. See Davenport, 147 F.3d at 610-12; Triestman, 124 F.3d at 376-80; In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir. 1997).2 In each of these cases, the court has noted that the prisoner‘s first § 2255 motion was filed prior to the decision in Bailey, at a time when it would have been futile to challenge the then-prevailing interpretation of the “use” prong of § 924(c)(1). These courts further have observed that Bailey establishes that a prisoner whose conviction rests on an improper definition of “use” is incarcerated for conduct that is not criminal, and that a Bailey claim is properly considered on collateral review. These courts have held that under these limited circumstances, § 2255 is inadequate to test the legality of the prisoner‘s detention, and accordingly that the prisoner may file a habeas petition under § 2241.3
We agree with the rationale and holdings of these courts. Accordingly, we conclude that § 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme
Applying this holding to Jones’ case, we conclude that he is entitled to file a habeas petition in the district of his confinement pursuant to § 2241. Jones was convicted of four counts of violating § 924(c)(1) based on the discovery of four firearms in a locked closet. The firearms were found during the course of a search that also resulted in the discovery of a quantity of crack cocaine in another part of the apartment. Under the settled law of this circuit at the time of Jones’ conviction, the evidence was sufficient to support a conclusion that Jones “used” the guns during and in relation to a drug trafficking offense. However, under Bailey, mere possession of firearms during and in relation to a drug trafficking offense does not constitute “use” within the meaning of § 924(c)(1); thus, Jones is incarcerated for conduct that is not criminal.4 Finally, Bailey was decided after Jones’ appeal and after the decision on his first § 2255 motion.
IV.
For the reasons set forth above, we conclude that application of the gatekeeping provisions of
Entered at the direction of Judge Wilkins, with the concurrences of Judge Murnaghan and Judge Williams.