United States v. Perkins ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-11457
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY PERKINS, JR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(5:95-CV-94-C)
_________________________________________________________________
January 23, 1998
Before JONES and SMITH, Circuit Judges, and FITZWATER, District
Judge.*
PER CURIAM:**
Defendant-appellant Roy Perkins, Jr. pled guilty to a
single-count superseding information charging him with using and
carrying a firearm during and in relation to a drug-trafficking
*
District Judge of the Northern District of Texas, sitting
by designation.
**
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this opinion should not be published and is not precedent except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.
crime in violation of 18 U.S.C. § 924(c)(1)-(2). The district
court sentenced Perkins to a 120-month term of imprisonment, to be
followed by a three year term of supervised release. Perkins did
not pursue a direct appeal. He subsequently filed a habeas corpus
motion pursuant to 28 U.S.C. § 2255.
Perkins’s second amended § 2255 motion argues that his
guilty plea is invalidated by Bailey v. United States, 116 S. Ct.
501, 509 (1995). The district court granted § 2255 relief to
Perkins and entered an order of acquittal as to the “use” prong of
his conviction, but denied relief as to the “carry” prong. Perkins
now contends that the district court erred in denying him relief
under the “carry” prong of § 924(c)(1). We dismiss for lack of
jurisdiction.
I. Analysis
Section 2255 identifies four specific grounds upon
which an individual may move to vacate, set aside, or correct his
sentence. See 28 U.S.C. § 2255. In general, “[r]elief under 28
U.S.C.A. § 2255 is reserved for transgressions of constitutional
rights and for a narrow range of [nonconstitutional] injuries
that could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice.” United
States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992); see also
United States v. Shaid, 937 F.2d 228, 232 n.7 (5th Cir. 1991) (en
banc) (holding that nonconsitutional issues are cognizable under
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§ 2255 only if the error could not have been raised on direct
appeal).
Bailey is a substantive, nonconsitutional decision
concerning the reach of a federal statute. See United States v.
McPhail, 112 F.3d 197, 199 (5th Cir. 1997); see also In re
Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997); Stanback v. United
States, 113 F.3d 651, 654 n.2 (7th Cir. 1997); United States v.
Barnhartdt, 93 F.3d 706, 709 (10th Cir. 1996). In addition,
Bailey does not address the “carry” prong of § 924(c)(1), but
rather only the “use” prong. See United States v. Thompson, 122
F.3d 304, 306 (5th Cir. 1997); United States v. Muscarello, 106
F.3d 636, 637-40 (5th Cir.), cert. granted, 118 S. Ct. 621
(1997); United States v. Still, 102 F.3d 118, 124 (5th Cir.
1996), cert. denied, 118 S. Ct. 43 (1997); United States v.
Rivas, 85 F.3d 193, 195 (5th Cir.), cert. denied, 117 S. Ct. 593
(1996). Therefore, Perkins’s claim under the “carry” prong is
not affected by Bailey. That is, his claim regarding the
sufficiency of the record to support his guilty plea under the
“carry” prong is subject to exactly the same law today as it
would have been if Perkins had pursued a direct appeal of his
conviction. Because Perkins could have raised the issue before
us on direct appeal, but chose not to, we lack jurisdiction to
hear his § 2255 claim.
II. Conclusion
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Because we lack jurisdiction to consider Perkins’s §
2255 claim, this case is dismissed.
DISMISSED.
4