In Re Ocsulis Dorsainvil

STAPLETON, Circuit Judge,

concurring:

As I read the opinion of the court, my colleagues and I agree on the following propositions:

1. Dorsainvil has failed to meet the gatekeeping criteria of the AEDPA applicable to successive petitions under § 2255.

2. Section 2255 is not “inadequate or ineffective to test the legality of detention” merely because access to a federal court under that section is barred by the gatekeeping provisions. The availability of relief by way of an initial petition means that § 2255 is normally adequate and effective for this purpose even though a successive petition would be barred by the gatekeeping provisions.

3. Section 2255 is “inadequate or ineffective to test the legality of detention” in a case where the gatekeeping provisions bar a successive petitioner who can allege actual innocence of the crime of which he was convicted and who, at the time of his earlier petition(s), *253 could not demonstrate that innocence. Accordingly, § 2255 is “inadequate or ineffective” in a situation in which a successive petitioner can allege both that the Supreme Court, since his last petition, has interpreted the statute under which he was convicted in a new way and that his conduct was lawful under the statute as subsequently interpreted.

4. Although the gatekeeping provisions applicable to successive § 2255 petitions must “inform” a court in determining whether to entertain a petition under § 2241, cf. Felker v. Turpin, — U.S. -, 116 S.Ct. 2333 , 135 L.Ed.2d 827 (1996) (so holding with respect to the gatekeeping provisions applicable to successive § 2254 petitions), a court can entertain a § 2241 petition where a successive petitioner can allege both that the Supreme Court, since his last petition, has interpreted the statute under which he was convicted in a new way and that his conduct was lawful under the statute as so interpreted.

5. Denial of Dorsainvil’s application for permission to file a successive § 2255 petition because he has failed to satisfy the gatekeeping provisions does not violate the Due Process Clause or the Suspension of the Writ Clause.

As I read the court’s opinion, my colleagues and I do differ on whether it may be possible in this particular case for Dorsainvil to gain access to a federal court under § 2241. They suggest that a district court, after viewing “the full record of the evidence presented, the arguments made at trial, and the charge” (Slip Op. at 14), might properly decide to entertain a § 2241 petition despite the fact that Dorsainvil has not satisfied the gatekeeping provisions of the AEDPA applicable to successive § 2255 petitions. I disagree because it is clear from the record in this case that Dorsainvil cannot allege facts which will support his claim of actual innocence, and therefore the unavailability of relief under § 2255 does not render that provision inadequate or ineffective as to him.

Dorsainvil was indicted for “knowingly us[ing] and carrying] ... a firearm during and in relation to ... drug trafficking crimes.” Superseding Indictment, Count III., App. at 36-37. In accordance with the indictment, the court charged the jury on “using or carrying a firearm during and in relation to a drug trafficking crime.” Tr. at 9 (emphasis added). 1 The undisputed facts from Dorsainvil’s trial and the jury’s finding that he used or carried a gun “during and in relation to a drug trafficking crime” make it impossible for him to allege that his conduct was not prohibited by the statute he was convicted of violating.

The uncontradieted record establishes that Dorsainvil drove the truck, that he was apprehended in the driver’s seat with cocaine in his pants, that there was a loaded gun with a live round in the chamber in an open paper bag also containing his wallet and personal papers, that the bag was located between the front seats within his reach, and that the firearm was purchased by and registered to him. Dorsainvil did not contest these facts at trial. Nor did he contest the fact that he had placed the gun in the truck. He denied only that the gun’s presence bore any relation to the drug transaction. Based on facts that Dorsainvil does not now dispute, and after being fully instructed on the “in relation to” element of the offense charged, the jury found Dorsainvil guilty as charged.

While Dorsainvil stresses that the trial court gave a more expansive definition of “use” than would be warranted after Bailey, he ignores the fact that he “carried” the gun in relation to the drug transaction, even if he did not also “use” it in relation to that transaction. Indeed, on virtually the same facts, this court has held that the defendant “carried” a gun in relation to a drug offense. United States v. Eyer, 113 F.3d 470 (3d Cir.1997). Despite the court’s suggestion to the contrary, there is no legally relevant *254 distinction between Dorsainvil’s case and Eyer .

Police arrested the defendant in Eyer while he was making a delivery of cocaine and seized his automobile. They discovered “a fully loaded Colt .380 caliber semiautomatic hand gun with a live round in its chamber located in the console between its front seats along with some cocaine.” Id. at 471 . After defendant-Eyer’s § 924(c)(1) conviction at a bench trial, he filed a § 2255 petition predicated on the decision in Bailey. He asserted that he was tried “based on the expansive definition of ‘use’ set forth in United States v. Theodoropoulos, 866 F.2d 587 (3d Cir.1989), which held that a firearm was ‘used’ if it was available for possible use during the drug transaction.” Eyer, 113 F.3d at 475 . Eyer also insisted that the facts in his case could not justify a conviction under the carry prong. The district court rejected both arguments and we affirmed. With respect to Eyer’s insistence that he did not “carry” the gun, we held:

[T]he facts here compel the conclusion that Eyer was carrying the firearm---- [T]he handgun was loaded and was in a console between the two front seats, and was conveyed with the cocaine to the purchaser’s apartment. Eyer’s easy access to the handgun and its transportation convinces us that he was carrying it.

Id. at 476 (emphasis added). Dorsainvil, too, had easy access to a gun while he transported it during and in relation to a drug offense, and these facts compel the conclusion that Dorsainvil “carried” the gun.

In short, this is not a case in which the petitioner alleges facts that demonstrate actual innocence, and no miscarriage of justice will result from denial of the § 2255 certification. Accordingly, alternative access to a federal court under § 2241 is not necessary to the constitutionality of § 2255, and I would not suggest that such access might be available.

. At oral argument Dorsainvil's counsel questioned the adequacy of the charge on "carrying,” pointing out that more emphasis was placed on "using.” Dorsainvil did not object at trial to the charge on this ground. More importantly, he cannot succeed at this stage in the game merely by pointing to a deficiency in a jury instruction. He must allege facts that affirmatively demonstrate innocence. This he cannot do.