United States v. Thomas ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 3 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-2294
(D.C. No. CIV 96-95 SC/WWD
v.
CR-94-410 SC)
(Dist. N.M.)
MARVIN THOMAS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
Appellant Marvin Thomas (“Thomas”) appeals from the district court’s
denial of his 28 U.S.C. § 2255 motion. We exercise jurisdiction under 28 U.S.C.
§ 1291 and affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
On June 15, 1994, Thomas pled guilty to two counts of carrying and using
a firearm during and in relation to a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1). Thomas was arrested after delivering more than five grams of
crack cocaine to an undercover officer waiting in a hotel room. The firearm was
found in Thomas’s car by police who observed him drive to the delivery and then
drive away with marked cash from the transaction. Thomas asserts that because
the law governing the “carry” prong of 18 U.S.C. § 924(c) was altered by the
Supreme Court’s decision in Bailey v. United States, 116 S. Ct. 501 (1995), his
guilty plea is unsupported by the factual record.
Thomas requests that we grant him a certificate of appealability under 28
U.S.C. § 2253(c)(1)(B)(West Supp. 1997). However, Thomas filed his initial
§ 2255 motion in the district court on January 22, 1996. On April 24, 1996
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996.
(“AEDPA”). One of the requirements of the AEDPA is that any federal prisoner
bringing a § 2255 challenge of his sentence must first obtain a certificate of
appealability upon showing the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (West Supp. 1997). However, according to the Supreme Court’s decision
in Lindh v. Murphy, 117 S.Ct. 2059 (1997), § 2255 motions filed in the district
court before April 24, 1996 are not subject to the provisions of the AEDPA. Id. at
2063-68. Before the AEDPA was passed, federal prisoners were not required to
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seek any sort of certification in order to proceed with their § 2255 appeals. Thus,
Thomas is not required to seek a certificate of appealability for his § 2255
motion. Instead, we examine his appeal on the merits.
We find that Thomas’s appeal fails as a matter of law. Appellant argues
that the factual record does not support his § 924(c) vehicular carry guilty plea.
However, as the district court aptly points out, the long-established law in this
circuit regarding the “carry” prong of 18 U.S.C. § 924(c) simply requires that the
defendant have actual or constructive access to and knowingly transport the
weapon in question in the defendant’s vehicle. See United States v. Miller, 84
F.3d 1244, 1260 (10th Cir. 1996), overruled on other grounds by United States v.
Holland, 116 F.3d 1353 (10th Cir. 1997). The law governing the term “carry”
under 18 U.S.C. § 924(c) was not changed by Bailey. See Miller, 84 F.3d at 1260(“We see nothing in Bailey that conflicts with our pre-Bailey “vehicular carrying”
line of cases.”).
Thomas admits in the “Statement of Undisputed Material Facts” section of
his amended § 2255 motion that the gun in question was located underneath the
passenger-side front seat of the vehicle. (Tr. Rec. vol. I at 15.) The “carry”
prong of 18 U.S.C. § 924(c) is met when the defendant has easy access to the
weapon. See United States v. Ruth, 100 F.3d 111,113 (10th Cir. 1996); Miller, 84
F.3d at 1258-60; United States v. Spring, 80 F.3d 1450, 1464-65 (10th Cir.
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1996); see also United States v. McDonald, 933 F.2d 1519, 1526 (10th Cir. 1991)
(“carrying” satisfied where gun was stored under driver’s seat). Under this
circuit’s case law storage under the passenger-side front seat of one’s vehicle
clearly qualifies as easy access. Thomas’s argument fails as a matter of law. 1
Thomas also asserts that the firearm found in his vehicle was not an
integral part of the drug transaction underlying his conviction, as the transaction
occurred in the motel room of his co-defendant and no drugs were found in
Thomas’s car. However, as the district court points out, this was not an issue in
Bailey and could have been raised by Thomas on direct appeal. Lacking cause
and prejudice Thomas is barred from raising this issue as a ground for his § 2255
motion. See United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996).
Thus for substantially the same reasons set out in the district court’s
Memorandum Opinion and Order of October 25, 1996 the judgment of the District
Court of New Mexico is AFFIRMED.
The mandate shall issue forthwith.
1
Thomas further asserts that this circuit has held that, in cases in which the
weapon was not within immediate reach of the defendant, we look to the
proximity of the weapon to the illegal drugs in question. Because the gun here
was located in a clearly accessible place in the vehicle we need not address this
question.
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ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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