Herrold v. Quay ( 2016 )

15-3333
Herrold v. Quay
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 21st day of September, two thousand sixteen.
PRESENT: ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_________________________________________
Gene Allen Herrold,
Plaintiff-Appellant,
v. 15-3333
Quay, Warden
Respondent-Appellee.
_________________________________________
FOR APPELLANT: Gene Allen Herrold, pro se, Danbury, CT.
FOR APPELLEE: Sandra S. Glover, Henry K. Kopel and Marc H. Silverman,
Assistant United States Attorneys, for Deirdre M. Daly,
United States Attorney for the District of Connecticut, New
Haven, CT.
Appeal from a judgment of the United States District Court for the District of Connecticut
(Chatigny, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Gene Allen Herrold, proceeding pro se, appeals from the district court’s
dismissal of his 28 U.S.C. § 2241 petition, brought pursuant to the savings clause of 28 U.S.C.
§ 2255, which argued that the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137
(1995), rendered invalid his 1993 conviction for using and carrying a firearm during and in relation
to a drug trafficking offense in violation of 18 U.S.C. § 924(c). The district court dismissed the
petition for abuse of the writ because Herrold had declined to pursue a Bailey claim in his multiple
previous habeas petitions. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
“We review a district court’s denial of a petition for a writ of habeas corpus brought
pursuant to § 2241 de novo and review any factual findings for clear error.” Lugo v. Hudson, 785
F.3d 852, 854 (2d Cir. 2015) (per curiam). A district court may dismiss a petition as abusive if it
asserts a claim that could have been raised in a previous petition. Roccisano v. Menifee, 293 F.3d
51, 58 (2d Cir. 2002). To avoid such a dismissal, the petitioner must show cause by demonstrating
that “some objective factor external to [him] impeded [his] efforts” in raising the claim and must
also show “actual prejudice.” McCleskey v. Zant, 499 U.S. 467, 493-94 (1991) (internal quotation
marks omitted). If a petitioner fails to meet this standard, a court may excuse an abusive petition if
dismissal under the abuse-of-the-writ doctrine would result in a “fundamental miscarriage of
justice.” Id. at 494.
Upon review, we conclude that the district court did not err in dismissing Herrold’s
petition. Although the district court expressed skepticism that Herrold met the requirements of the
savings clause to bring a 28 U.S.C. § 2241 petition, it ultimately dismissed the petition under the
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abuse-of-the-writ doctrine. Herrold could have raised his Bailey claim in any one of the numerous
§ 2241 petitions that he filed in the Third Circuit, see In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.
1997) (holding that, under the savings clause, a petition can raise a Bailey argument in a § 2241
petition), but he declined to do so. His concern about the Third Circuit’s alleged bias against him
does not satisfy the “cause” requirement and, in any event, is belied by the record because he
continuously sought habeas relief in the Third Circuit on other grounds. Furthermore, this
dismissal does not result in a “fundamental miscarriage of justice” warranting review of the merits.
In Bailey, the Supreme Court held that the “use” prong of § 924(c) punishes only “active
employment” (and not mere possession) of a firearm during certain crimes. Bailey, 516 U.S. at
143. However, Bailey recognized that “[t]he ‘carry’ prong of § 924(c)(1) . . . brings some offenders
who would not satisfy the ‘use’ prong within the reach of the statute.” Id. at 150. Herrold was
indicted for both using and carrying a firearm during the commission of a drug trafficking offense
and raises no arguments that relate to his conviction under the carry prong. Moreover, the record
shows that Herrold was properly convicted under the carry prong: A witness testified that Herrold
had a gun during a drug transaction, and Herrold was holding a gun when the police arrested him in
his home, which contained drugs that Herrold had divided for sale. See United States v. Canady,
126 F.3d 352, 359 (2d Cir. 1997) (holding that the carry prong reaches a defendant who “actually
held the firearm during and in relation to a drug trafficking crime”). Therefore, Bailey’s narrowing
of the term “use” did not call into question Herrold’s conviction under the carry prong of § 924(c).
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We have considered Herrold’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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