Davis v. Tapia , 138 F. App'x 649 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 5, 2005
Charles R. Fulbruge III
Clerk
No. 04-31034
Summary Calendar
ROY STEVE DAVIS,
Petitioner-Appellant,
versus
ROBERT TAPIA,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:04-CV-618
Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Roy Steve Davis, federal prisoner # 16159-083, appeals
the denial of his 28 U.S.C. § 2241 habeas petition challenging his
convictions for bank robbery and use of a firearm during a crime of
violence. He alleges that he was denied the effective assistance
of counsel, the evidence was not sufficient to support the convic-
tions, the jury was improperly instructed, the district court
improperly applied the sentencing guidelines, and the Government
failed to prove that he used a weapon in relation to the offense
under Bailey v. United States, 516 U.S. 137 (1995).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Davis contends that his claims fall within the savings
clause of 28 U.S.C. § 2255. “[T]he savings clause of 28 U.S.C.
§ 2255 applies to a claim (i) that is based on a retroactively
applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense and
(ii) that was foreclosed by circuit law at the time when the claim
should have been raised in the petitioner’s trial, appeal, or first
§ 2255 motion.” Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001).
With respect to his non-Bailey claims, Davis has not
pointed to a retroactively applicable Supreme Court decision which
establishes that he may have been convicted of a nonexistent
offense, nor has he shown that these claims were foreclosed by
circuit law at the time of his conviction or when he filed his
initial 28 U.S.C. § 2255 motion. See Reyes-Requena, 243 F.3d at
903-04.
Davis’ Bailey claim was foreclosed by circuit law at the
time that he filed his first 28 U.S.C. § 2255 motion. See United
States v. Paz, 927 F.2d 176, 179 (4th Cir. 1991). He is not
entitled to raise the Bailey claim in a successive motion because
the Bailey decision did not announce a new rule of constitutional
law. Bousley v. United States, 523 U.S. 614, 620-23 (1998);
§ 2255. A valid Bailey claim is sufficient to meet the requirement
that the claim is based on a retroactively applicable Supreme Court
case. See Bousley, 523 U.S. at 620-21. However, it is unclear
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whether Davis can show that he was convicted of a nonexistent
offense under Bailey.
Title 18 U.S.C. § 924(c)(1) calls for an enhanced
sentence when a person uses or carries a firearm during and in
relation to any crime of violence or drug-trafficking crime. The
Bailey decision interpreted the “use” prong of 18 U.S.C.
§ 924(c)(1) as requiring the Government to show “active employment
of the firearm” to sustain a conviction on that prong. 516 U.S. at
144. The Fourth Circuit Court of Appeals has held that Bailey did
not define “carrying” within the context of 18 U.S.C. § 924(c).
See United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997).
It cannot be determined from the record whether Davis was
charged with “using” or “carrying” a firearm. Nor can it be
discerned from the record whether Davis “used” the weapon within
the meaning of Bailey. The judgment of the district court denying
the motion is VACATED, and the case is REMANDED to the district
court for a determination whether Davis’ conviction under 18 U.S.C.
§ 924(c) was valid in light of Bailey.
VACATED AND REMANDED.
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