In Re: Dorsainvil ( 1997 )


Menu:
  •                                                                                                                            Opinions of the United
    1997 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-23-1997
    In Re: Dorsainvil
    Precedential or Non-Precedential:
    Docket 96-8074
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
    Recommended Citation
    "In Re: Dorsainvil" (1997). 1997 Decisions. Paper 168.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1997/168
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    Filed July 23, 1997
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 96-8074
    IN RE: OCSULIS DORSAINVIL,
    Petitioner
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    Argued May 1, 1997
    Before: SLOVITER, Chief Judge,
    STAPLETON and COWEN, Circuit Judges
    (Opinion filed July 23, 1997)
    James D. Crawford (Argued)
    Wendy Bettlestone
    Joseph T. Lukens
    Schnader Harrison Segal & Lewis
    Philadelphia, PA 19l03
    Attorneys for Petitioner
    Elizabeth D. Collery (Argued)
    United States Department of
    Justice
    Appellate Section, Criminal Division
    Washington, D.C. 20044
    David M. Barasch
    United States Attorney,
    Middle District of Pennsylvania
    Dennis C. Pfannenschmidt
    Assistant United States Attorney
    Middle District of Pennsylvania
    Attorneys for Respondent
    OPINION OF THE COURT
    SLOVITER, Chief Judge.
    Ocsulis Dorsainvil has filed a motion pursuant to 
    28 U.S.C. §§ 2255
     and 2244(b)(3)(A), as amended by the
    Antiterrorism and Effective Death Penalty Act, seeking
    certification to file a second § 2255 motion to vacate, set
    aside, or correct his sentence. After Dorsainvil'sfirst
    petition was denied on the merits, the Supreme Court
    issued its opinion in Bailey v. United States, 
    116 S.Ct. 501
    (1995). Dorsainvil argues that Bailey renders his weapons
    conviction under 
    18 U.S.C. § 924
    (c)(1) invalid and asks that
    this court certify his second petition so that he may
    collaterally attack his § 924(c)(1) conviction in the district
    court.
    I.
    FACTS AND PROCEDURAL HISTORY
    Following a jury trial, Ocsulis Dorsainvil was convicted in
    the United States District Court for the Middle District of
    Pennsylvania of conspiracy to distribute cocaine base,
    distribution of cocaine base, and use of a firearm during
    and in relation to drug trafficking, a violation of 18 U.S.C.
    2
    § 924(c)(1). In the course of the trial the government
    introduced evidence that Dorsainvil and his co-defendant,
    Anel Louis, had arranged to sell some crack cocaine to an
    undercover policeman. When the police arrived, Dorsainvil
    was in the driver's seat of a pickup truck from which the
    drugs were to be sold. There was a gun in an open paper
    bag next to the driver's seat, in the center of the pickup
    truck. It was purchased by and registered to Dorsainvil.
    There was testimony from police officers that, as the officers
    moved in for the arrest after the buyer left to get the funds
    to complete the drug sale, Dorsainvil was fumbling with his
    pants, where cocaine was found, and making movements
    as if he were reaching for something in front of him.
    Dorsainvil did not touch the gun, and was arrested without
    incident. His wallet and personal papers were found in the
    bag with the gun after his arrest. He testified at trial and
    admitted that he possessed the gun, but he denied that the
    gun was related in any way to the drug transaction, stating
    that he bought it for protection while living in Florida. The
    jury convicted him on all counts.
    Dorsainvil did not file a direct appeal, but sought
    collateral relief under 
    28 U.S.C. § 2255
     on the grounds of
    ineffective assistance of counsel and double jeopardy. His
    pro se petition was denied on the merits by orders dated
    November 30, 1993, March 2, 1994, and April 22, 1994,
    and there was no appeal. On December 6, 1995, the
    Supreme Court decided Bailey v. United States, 
    116 S.Ct. 501
     (1995), construing § 924(c)(1). Approximately nine
    months later, Dorsainvil filed a second pro se § 2255
    petition in the district court. The district court ruled that it
    did not have jurisdiction to address the petition because of
    changes effected in § 2255 procedure by the recently
    enacted Antiterrorism and Effective Death Penalty Act of
    1996, Pub.L. 104-132, 
    110 Stat. 1214
     (the "AEDPA")
    (codified in relevant part at 
    28 U.S.C. § 2255
    ), and that only
    this court could give the necessary certificate. Dorsainvil
    then filed a motion with this court for certification of his
    second petition for relief under § 2255. We denied his
    motion, but stayed our order, appointed Dorsainvil counsel,
    and invited counsel to brief a series of questions concerning
    the AEDPA's newly enacted gatekeeping provisions.
    3
    II.
    DISCUSSION
    A.
    Under the AEDPA, before a successive § 2255 motion
    may be considered by the district court, it must be certified
    by a three judge panel of the court of appeals to contain:
    (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.
    
    28 U.S.C. § 2255
    .
    Dorsainvil had been convicted, inter alia, for using and
    carrying a firearm in violation of 
    18 U.S.C. § 924
    (c)(1). The
    language of that section, which imposes punishment upon
    a person who "during and in relation to any . . . drug
    trafficking crime . . . uses or carries a firearm," was
    construed in Bailey, where the Supreme Court held that a
    defendant could not be convicted of using a firearm under
    that statute unless the government proved that the
    defendant "actively employed the firearm during and in
    relation to the predicate crime." 
    116 S. Ct. at 509
    .
    Dorsainvil claims that there was insufficient evidence to
    show that he actively employed a firearm in relation to a
    drug trafficking crime and that he is therefore imprisoned
    for conduct that the Supreme Court has determined is not
    illegal.
    In the posture of the matter before us, our task is not to
    determine if, in fact, Dorsainvil used a firearm in a manner
    that satisfied the Supreme Court's Bailey interpretation but
    whether the AEDPA precludes a court from reaching the
    merits. Because this is Dorsainvil's second § 2255 petition,
    we may grant Dorsainvil's motion for a certificate only if
    4
    Dorsainvil meets one of the two prongs of § 2255's
    gatekeeping provision. Dorsainvil argues that he satisfies
    both prongs.1 We consider his contentions in turn.
    Dorsainvil argues that his application contains the
    requisite "newly discovered evidence." This contention is
    plainly incorrect. Dorsainvil has not presented any "newly
    discovered" facts that would bear on his guilt. Instead he
    argues that the Bailey decision places established facts in
    a different light so that they are as consistent with
    innocence as they are with guilt.
    We reject this creative interpretation of the plain
    language of § 2255(1). If, after the Bailey decision, the
    established facts would not have been sufficient to permit
    a reasonable fact finder to find that Dorsainvil was guilty of
    the use of a gun as proscribed by 
    18 U.S.C. § 924
    (c), it is
    only because Bailey changed the interpretation of "use" of
    a firearm by operation of law, not because of "newly
    discovered evidence." We view the first prong of the
    amended § 2255 as directed to certification of a successive
    petition based on a change in the underlying factual
    scenario, and conclude that Dorsainvil has alleged no such
    change.
    It is the second and alternative prong of the amended
    § 2255 that is directed to certification based on a change in
    the legal scenario. Dorsainvil contends that Bailey
    established a "new rule of constitutional law." Five courts of
    appeals have already determined that Bailey did not
    establish a new rule of constitutional law, but simply
    interpreted a substantive criminal statute. See In re Vial,___
    F.3d ___, 
    1997 WL 324385
    , at *3 (4th Cir. June 16, 1997);
    Coleman v. United States, 
    106 F.3d 339
    , 341 (10th Cir.
    1997)(per curiam); United States v. Lorentsen, 
    106 F.3d 278
    ,
    279 (9th Cir. 1997); In re Blackshire, 
    98 F.3d 1293
    , 1294
    (11th Cir. 1996)(per curiam); Nunez v. United States, 96
    _________________________________________________________________
    1. Dorsainvil does not argue that the Act is inapplicable because it
    cannot be applied retroactively to second motions made after its effective
    date if the first motion was made before, see In re Vial, 
    1997 WL 324385
    ,
    at *6-*7 (4th Cir. June 16, 1997) (Hall, J., dissenting), and hence we
    have no occasion to discuss the Supreme Court's opinion in Lindh v.
    Murphy, 
    1997 WL 338568
    , at *3 (U.S. June 23, 1997).
    
    5 F.3d 990
    , 992 (7th Cir. 1996). Dorsainvil counters that
    where a successive petitioner claims that s/he has been
    convicted and punished for conduct that the law no longer
    makes criminal, the Due Process Clause is implicated,
    because "[i]ncarceration for acts that do not constitute a
    crime is patently offensive to the Constitution." Appellant's
    Brief at 16. Dorsainvil appears to conclude that therefore
    Bailey embodies an implicit rule of constitutional law.
    Dorsainvil points to no legislative history to support such
    a reading, which would be contrary to the plain language of
    the statute. Under the statute, it is the "new rule" itself that
    must be one "of constitutional law," not the effect of failing
    to apply that rule to successive petitioners. Because we
    believe it is plain that Bailey is not a "new rule of
    constitutional law," we need not dwell on the fact that when
    the Supreme Court announced its interpretation of
    § 924(c)(1), it did not make it "retroactive to cases on
    collateral review." See Lorentsen, 
    106 F.3d at 279
    ; Nunez,
    96 F.3d at 992. The facts that the government has
    conceded that Bailey should be applied retroactively, see
    Appellee's Brief at 20, and courts have applied it
    retroactively on collateral review, see, e.g., United States v.
    Barnhardt, 
    93 F.3d 706
    , 709 (10th Cir. 1996), are
    consistent with viewing Bailey as a substantive statutory
    holding. Were it a constitutional rule, it would be subject to
    the presumption against the retroactive application of new
    rules of constitutional law as set forth in Teague v. Lane,
    
    489 U.S. 288
     (1989). See Barnhardt, 
    93 F.3d at 709
    .
    We conclude, therefore, that Dorsainvil has failed to
    satisfy either prong of § 2255 as amended.
    B.
    Dorsainvil argues that if his claim that he has been
    convicted and imprisoned for conduct that is not criminal
    cannot be heard by the district court, then § 2255 as
    amended by the AEDPA is unconstitutional as a violation of
    the Due Process Clause of the Fifth Amendment or the
    Suspension Clause of Article I, section 9 of the
    Constitution. Were no other avenue of judicial review
    available for a party who claims that s/he is factually or
    6
    legally innocent as a result of a previously unavailable
    statutory interpretation, we would be faced with a thorny
    constitutional issue. Dorsainvil argues, however, that there
    are a number of other avenues for relief, and proffers in
    addition to the writ of habeas corpus available under 
    28 U.S.C. § 2241
    , the writ of error coram nobis, the writ of
    audita querela and Rule 60(b) of the Federal Rules of Civil
    Procedure. We need not consider the litany of potential
    alternatives, because we conclude that, under narrow
    circumstances, a petitioner in Dorsainvil's uncommon
    situation may resort to the writ of habeas corpus codified
    under 
    28 U.S.C. § 2241
    .
    Section 2241 states that "[w]rits of habeas corpus may be
    granted by the Supreme Court, any justice thereof, the
    district court and any circuit judge within their respective
    jurisdictions" to prisoners "in custody in violation of the
    Constitution or laws or treaties of the United States." 
    28 U.S.C. § 2241
    (a),(c)(3). In Felker v. Turpin, 
    116 S.Ct. 2333
    (1996), a case involving a state prisoner, the Supreme
    Court considered the extent to which the AEDPA
    circumscribed its own power to issue writs of habeas
    corpus. The Court held that although section 106(b)(3)(E) of
    the AEDPA, codified in 
    28 U.S.C. § 2244
    (b)(3)(E), precludes
    the Supreme Court from reviewing by appeal or petition for
    certiorari a judgment on an application for leave to file a
    second habeas petition in district court, the Act does not
    affect the Supreme Court's authority to hear habeas
    petitions filed as original matters in that Court. 
    Id. at 2339
    .
    Reviewing the history of the predecessors of § 2241, the
    Court observed that in the 1996 Act Congress had not
    expressly referred to the Court's longstanding authority to
    entertain a petition for habeas corpus, and stated that
    "[r]epeals by implication are not favored." Id. at 2338. Thus,
    in Felker, as in its decision more than a century earlier in
    Ex parte Yerger, 
    8 Wall. 85
    , 
    19 L.Ed. 332
     (1869), the Court
    specifically "declin[ed] to find a . . . repeal of § 2241 of Title
    28 . . . by implication." Felker, 
    116 S.Ct. at 2339
    .2
    _________________________________________________________________
    2. We note that in a recent decision, a district court held that the AEDPA
    provision barring judicial review of certain deportation orders did not
    repeal the habeas corpus jurisdiction that it has pursuant to § 2241, and
    in so holding it relied upon the same language quoted in the text. See
    Yesil v. Reno, 
    958 F. Supp. 828
    , 837 (S.D.N.Y. 1997).
    7
    Ever since 1948, when Congress enacted § 2255 to allow
    for collateral review of the sentences of federal prisoners in
    the trial court, that section, rather than § 2241, has been
    the usual avenue for federal prisoners seeking to challenge
    the legality of their confinement. The addition of § 2255 was
    deemed necessary because the judiciary was experiencing
    practical problems in light of the obligation for federal
    prisoners to file their § 2241 claims in the district where
    they were confined. This requirement meant that "the few
    District Courts in whose territorial jurisdiction major
    federal penal institutions are located were required to
    handle an inordinate number of habeas corpus actions far
    from the scene of the facts, the homes of the witnesses and
    the records of the sentencing court solely because of the
    fortuitous concentration of federal prisoners within the
    district." United States v. Hayman, 
    342 U.S. 205
    , 213-14
    (1952).
    With the enactment of § 2255, much of the collateral
    attack by federal prisoners has been routed to the
    jurisdiction of the trial court. Congress's interest in
    cabining those claims lays behind its enactment of Title I of
    the AEDPA. Significantly, however, the AEDPA did not
    amend the "safety-valve" clause in § 2255 that refers to the
    power of the federal courts to grant writs of habeas corpus
    pursuant to § 2241.
    Indeed, § 2255, even following the recent amendment by
    the AEDPA, specifically allows recourse to original writs of
    habeas corpus, albeit in narrowly defined circumstances:
    An application for a writ of habeas corpus in behalf of
    a prisoner who is authorized to apply for relief by
    motion pursuant to this section, shall not be
    entertained 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.
    
    28 U.S.C. § 2255
     (emphasis added).
    In Hayman, decided shortly after the enactment of
    § 2255, the Court considered the effect of the new provision
    8
    on habeas corpus claims brought under § 2241. 
    342 U.S. at 206
    . Hayman, the petitioner, had filed a motion under
    § 2255 claiming ineffective assistance of counsel. The
    district court, after a hearing without notice to or the
    presence of Hayman, denied the motion. The court of
    appeals, questioning the adequacy and constitutionality of
    § 2255, directed that the motion be dismissed so that
    Hayman could proceed by a writ of habeas corpus under
    § 2241. In overturning that decision, the Supreme Court
    noted that because the district court ruling on a § 2255
    motion could compel the production of the prisoner
    confined in another district, § 2255 was neither "inadequate
    nor ineffective." Id. at 222-23. At the same time, it
    confirmed the continued availability of the writ of habeas
    corpus, stating that "in a case where the Section 2255
    procedure is shown to be ``inadequate or ineffective,' the
    Section provides that the habeas corpus remedy shall
    remain open to afford the necessary hearing." Id. at 223.
    The Court concluded that "[u]nder such circumstances, [it
    need not] reach constitutional questions." Id.
    The "inadequate or ineffective" language as a safety-valve
    was also emphasized by the Court in Swain v. Pressley,
    
    430 U.S. 372
     (1977), where the petitioner challenged the
    constitutionality of a provision of the District of Columbia
    Code that channeled prisoners' collateral attacks to the
    local Superior Court. The Supreme Court, relying on
    Hayman, rejected the contention that the substitution
    constituted a suspension of the Great Writ, stating: "The
    Court implicitly held in Hayman, as we hold in this case,
    that the substitution of a collateral remedy which is neither
    inadequate nor ineffective to test the legality of a person's
    detention does not constitute a suspension of the writ of
    habeas corpus." 
    Id. at 381
    .
    The government argues that a § 2255 motion is not
    "inadequate or ineffective" to test the legality of Dorsainvil's
    detention because those terms should be limited to
    situations where "practical considerations precluded a
    remedy in the sentencing court." Appellee's Brief at 24
    (emphasis in original). Although it concedes that there is
    but sparse authority on the issue, it relies on legislative
    history showing that the momentum for § 2255 emanated
    9
    from the Judicial Conference of the United States which
    had recommended two bills, a "procedural bill" and a
    "jurisdictional bill," that were the precursors of § 2255. The
    "jurisdictional bill" would have expressly limited an
    application for writ of habeas corpus unless the prisoner
    showed that " ``it appears that it has not been or will not be
    practicable to determine his rights to discharge from
    custody on [a § 2255 motion] because of his inability to be
    present at the hearing on such motion or for other
    reasons.' " Hayman, 
    342 U.S. at
    216 n.23 (quoting
    H.R.4233 and S.1451, 79th Cong., 1st Sess. (jurisdictional
    bill)).
    Congress did not adopt the language of the Conference's
    bill, and the statute as enacted contained the "inadequate
    or ineffective" clause without circumscribing it in the
    manner proposed in the Judicial Conference proposal.
    Nothing in § 2255 itself would limit resort to a § 2241 writ
    of habeas corpus in the manner suggested by the
    government. Although admittedly habeas corpus under
    § 2241 is now reserved for rare cases, the Court in Hayman
    stressed that in enacting § 2255 Congress did not intend
    "to impinge upon prisoners' rights of collateral attack upon
    their convictions," id. at 219, but solely "to minimize the
    difficulties encountered in habeas hearings by affording the
    same right in another and more convenient forum." Id.
    It is noteworthy that when the Supreme Court in Swain
    turned to the issue of the adequacy of the new provision in
    the District of Columbia Code, which is virtually identical to
    § 2255, it did not limit its consideration to "practical
    considerations," as the government argues here, but
    inquired whether the availability of a collateral remedy
    before an Article I court was adequate to test the legality of
    the detention. Swain, 
    430 U.S. at 382-83
    . Although it
    rejected the challenge, the fact that the Court considered
    the merits of the adequacy issue when the challenge went
    beyond one limited to a practicality issue suggests a
    broader scope to the "inadequate or ineffective" language
    than the government's narrow interpretation proffered here.
    Indeed, we are hard put to understand precisely the type of
    situation which the government believes fits within the
    "inadequate or ineffective" language.
    10
    Dorsainvil argues that the safety-valve provision of
    § 2255 covers his situation because he seeks to challenge
    his conviction on a second § 2255 petition based on an
    intervening decision by the Supreme Court. A similar case
    "involv[ing] the availability of collateral relief from a federal
    criminal conviction based upon an intervening change in
    substantive law" came before the Supreme Court in Davis
    v. United States, 
    417 U.S. 333
    , 334 (1974). In that case, the
    Court stated that a Supreme Court decision interpreting a
    criminal statute that resulted in the imprisonment of one
    whose conduct was not prohibited by law "presents
    exceptional circumstances where the need for the remedy
    afforded by the writ of habeas corpus is apparent." 
    Id. at 346
     (internal quotations omitted). The Court held that "if
    [petitioner's] contention is well taken, then [his] conviction
    and punishment are for an act that the law does not make
    criminal. There can be no room for doubt that such a
    circumstance inherently results in a complete miscarriage
    of justice and present(s) exceptional circumstances that
    justify collateral relief under § 2255." Id. at 346-47 (internal
    quotations omitted); see also United States v. Addonizio,
    
    442 U.S. 178
    , 186-87 (1979) (discussing Davis and
    observing that a refusal to have vacated his sentence
    "would surely have been a ``complete miscarriage of justice,'
    since the conviction and sentence were no longer lawful").
    The decision in Davis that § 2255 was broad enough to
    cover a defendant imprisoned for a crime that an
    intervening decision negates does not govern Dorsainvil's
    motion before us only because he has brought his claim for
    relief on a second § 2255 motion. In the earlier part of this
    opinion, we construed the AEDPA to preclude our
    certification of a second § 2255 motion that relied on the
    intervening decision in Bailey as a basis for certification.
    Thus, Dorsainvil does not have and, because of the
    circumstance that he was convicted for a violation of
    § 924(c)(1) before the Bailey decision, never had an
    opportunity to challenge his conviction as inconsistent with
    the Supreme Court's interpretation of § 924(c)(1). If, as the
    Supreme Court stated in Davis, it is a "complete
    miscarriage of justice" to punish a defendant for an act that
    the law does not make criminal, thereby warranting resort
    to the collateral remedy afforded by § 2255, it must follow
    11
    that it is the same "complete miscarriage of justice" when
    the AEDPA amendment to § 2255 makes that collateral
    remedy unavailable. In that unusual circumstance, the
    remedy afforded by § 2255 is "inadequate or ineffective to
    test the legality of [Dorsainvil's] detention."
    There is no reason why § 2241 would not be available
    under these circumstances, provided of course that
    Dorsainvil could make the showing necessary to invoke
    habeas relief, an issue for the district court. The coverage
    of the two provisions is not dissimilar. Indeed, in Davis the
    Court stated "[t]hat history makes clear that § 2255 was
    intended to afford federal prisoners a remedy identical in
    scope to federal habeas corpus." Davis, 
    417 U.S. at 343
    ;
    see also United States v. Anselmi, 
    207 F.2d 312
    , 314 (3d
    Cir. 1953) ("[S]ection 2255 . . . afford[s] to a convicted
    federal prisoner a remedy which is the substantial
    equivalent of the conventional writ of habeas corpus.")
    (emphasis added).
    We do not suggest that § 2255 would be "inadequate or
    ineffective" so as to enable a second petitioner to invoke
    § 2241 merely because that petitioner is unable to meet the
    stringent gatekeeping requirements of the amended § 2255.
    Such a holding would effectively eviscerate Congress's
    intent in amending § 2255. However, allowing someone in
    Dorsainvil's unusual position - that of a prisoner who had
    no earlier opportunity to challenge his conviction for a
    crime that an intervening change in substantive law may
    negate, even when the government concedes that such a
    change should be applied retroactively - is hardly likely to
    undermine the gatekeeping provisions of § 2255.
    Nothing in our holding in this case represents a deviation
    from our prior precedent strictly construing the
    applicability of the safety-valve language in § 2255. See
    Application of Galante, 
    437 F.2d 1164
    , 1165-66 (3d Cir.
    1971) (per curiam) (unfavorable legal standards prevailing in
    circuit where sentencing court located does not render
    § 2255 remedy "inadequate or ineffective"); Litterio v. Parker,
    
    369 F.2d 395
    , 396 (3d Cir. 1966) (per curiam) (sentencing
    court's prior denial of identical claims does not render
    § 2255 remedy "inadequate or ineffective"); Mucherino v.
    Blackwell, 
    340 F.2d 94
    , 95 (3d Cir. 1965) (per curiam)
    12
    (same); Crismond v. Blackwell, 
    333 F.2d 374
    , 377 & n.6 (3d
    Cir. 1964) (neither 2,000 mile distance between sentencing
    court and district of confinement, nor denial of relief by
    sentencing court, nor denial of leave to appeal from
    sentencing court in forma pauperis, render § 2255 remedy
    "inadequate or ineffective," nor do any "unusual
    circumstances" exist); United States ex rel. Leguillou v.
    Davis, 
    212 F.2d 681
    , 684 (3d Cir. 1954) (remedy by § 2255
    motion not "inadequate or ineffective" if district court "could
    have entertained the prisoner's claim, inquired fully into
    the facts and granted the very relief the prisoner is
    seeking"); see also Bradshaw v. Story, 
    86 F.3d 164
    , 166
    (10th Cir. 1996) (denial of prior § 2255 motion does not
    show that § 2255 is an inadequate remedy).
    The government has not suggested that Dorsainvil has
    abused the writ, the principal situation that the AEDPA
    was intended to eliminate and for which the Court in Felker
    chose to be "inform[ed]" by the gatekeeping provisions of
    § 2255. 116 S. Ct. at 2339. He is in an unusual situation
    because Bailey was not yet decided at the time of his first
    § 2255 motion. Our holding that in this circumstance
    § 2255 is inadequate or ineffective is therefore a narrow
    one. In the posture of the case before us, we need go no
    further to consider the other situations, if any, in which the
    "inadequate or ineffective" language of section 2255 may be
    applicable.
    C.
    The question before us is not whether Dorsainvil is
    actually innocent of violating § 924(c)(1), but rather, as in
    Davis, 
    417 U.S. at 347
    , whether his claim that he is being
    detained for conduct that has subsequently been rendered
    non-criminal by an intervening Supreme Court decision is
    cognizable in a district court. The government does not
    argue that Dorsainvil "used" a firearm within the meaning
    of § 924(c)(1), but instead argues that Dorsainvil was
    "carrying" a firearm within the meaning of§ 924(c)(1), and
    therefore cannot present himself as "actually innocent."
    There may be some force in the government's argument,
    which has convinced our concurring colleague. Judge
    Stapleton relies for precedent on this court's recent decision
    13
    in United States v. Eyer, 
    113 F.3d 470
     (3d Cir. 1997), where
    we held that the defendant, who had a firearm in an
    automobile in a position similar to that of Dorsainvil, was
    guilty under the "carries" language of § 924(c)(1) penalizing
    anyone who "during and in relation to any . . . drug
    trafficking crime . . . uses or carries a firearm." However, in
    Eyer, unlike this case, the facts showed that the handgun
    "was conveyed with the cocaine to the purchaser's
    apartment," id. at 476, which patentlyfits the definition of
    carrying. Dorsainvil argues that "transportation" of a
    firearm is not the same as "carrying" it for purposes of this
    statute. Moreover, Dorsainvil may argue that the jury was
    not fully charged on the "carry" aspect to§ 924(c)(1), and
    we have found that "carry" appears to have been referred to
    only summarily in the district court's instructions.
    We offer no opinion on these issues. Unlike our
    concurring colleague, we believe they are best presented to
    a district court as that court can view the full record of the
    evidence presented, the arguments made at trial, and the
    charge. It is sufficient for our purposes in declining to reach
    the constitutional issue raised by Dorsainvil that we have
    concluded that resort to § 2241 is still available in an
    appropriate case, and that Dorsainvil's claim is not so
    devoid of merit that it should be foreclosed by us at this
    stage. The AEDPA has channeled § 2241 petitions to the
    district courts in the first instance. No district court has
    had the opportunity to consider whether, following Bailey,
    Dorsainvil's conduct falls within § 924(c)(1). We cannot
    conclude that Dorsainvil has failed to present at least a
    sufficiently colorable claim based on Bailey for review under
    § 2241.
    III.
    CONCLUSION
    We adhere to our prior order denying Dorsainvil's motion
    for certification to file a second petition pursuant to § 2255.
    Our denial is without prejudice to Dorsainvil's right to file
    a petition for writ of habeas corpus pursuant to 
    28 U.S.C. § 2241
     in a district court in the district of his confinement.
    14
    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), 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
     (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.
    15
    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
    carry[ing] ... 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 afirearm 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 uncontradicted 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
    _________________________________________________________________
    1. 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.
    16
    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
    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 semi-
    automatic 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. Theodoropoulus, 
    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
    17
    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.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    18