United States v. Assed

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-50529
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NASSER ASSED,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
No. W-90-CR-1-1
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August 23, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Nasser Assed, federal prisoner #52420-080, appeals from the
district court’s judgment denying his 28 U.S.C. § 2255 motion to
set aside his conviction. The district court did not specify the
issue on which it granted a COA. In granting a COA, the district
court must state the specific issue or issues that satisfy the
criterion for granting a COA. 28 U.S.C. § 2253(c)(3). The
district court’s failure to specify the issue does not impede
consideration of this appeal because there was only one issue in
*
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this opinion should not be published and is not precedent except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.
the § 2255 motions and thus only one that could be the subject of
a COA. See Else v. Johnson, 104 F.3d 82, 83 (5th Cir. 1997).
Assed contends that his guilty plea conviction for using a
firearm during a drug trafficking crime, 18 U.S.C. § 924(c), should
be vacated in the light of the Supreme Court’s decision in Bailey
v. United States, 516 U.S. 137 (1995). He argues that he is
actually innocent because the factual basis presented by the
government does not support his conviction under the “use” prong of
§ 924(c) as defined in Bailey. A review of the plea colloquy
supports Assed’s claim.
Assed, however, procedurally defaulted this claim by failing
to raise it in his direct appeal. See United States v. Shaid, 937
F.2d 228, 232 (5th Cir. 1991)(en banc). In the light of the
Supreme Court’s decision in Bousley v. United States, 523 U.S. 614
(1998), Assed cannot rely on a cause-and-prejudice argument to
overcome procedural default. See United States v. Sanders, 157
F.3d 302, 305 (5th Cir. 1998). He must establish his actual
innocence of the § 924(c) violation to secure relief. See United
States v. Jones, 172 F.3d 381, 384 (5th Cir. 1999). Because the
district court denied Assed’s § 2255 motion without considering his
claim of actual innocence, in accordance with the dictates of
Bousley, we VACATE the district court’s denial of Assed’s § 2255
motion and REMAND this action to the district court for a
determination whether Assed is actually innocent of the § 924(c)
violation. See Jones, 172 F.3d at 384-85.
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VACATED and REMANDED.
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