Herrold v. Quay

Second Circuit

Herrold v. Quay

669 F. App'x 8

CourtCourt of Appeals for the Second Circuit

DecidedSeptember 21, 2016

Docket15-3333

StatusUnpublished

This text of 669 F. App'x 8 (Herrold v. Quay) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Herrold v. Quay, 669 F. App'x 8 (2d Cir. 2016).

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Opinion

SUMMARY ORDER

Appellant Gene Alen 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, 116 S.Ct. 501, 133 L.Ed.2d 472 (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 Her-rold 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, 111 S.Ct. 1454, 113 L.Ed.2d 517 (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, 111 S.Ct. 1454.

Upon review, we conclude that the district court did not err in dismissing Her-rold’s petition. Athough the district court expressed skepticism that Herrold met the requirements of the savings clause to *9 bring a 28 U.S.C. § 2241 petition, it ultimately dismissed the petition under the 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, 116 S.Ct. 501. 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, 116 S.Ct. 501. 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).

We have considered Herrold’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

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SUMMARY ORDER

Appellant Gene Alen 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, 116 S.Ct. 501, 133 L.Ed.2d 472 (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 Her-rold 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, 111 S.Ct. 1454, 113 L.Ed.2d 517 (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, 111 S.Ct. 1454.

Upon review, we conclude that the district court did not err in dismissing Her-rold’s petition. Athough the district court expressed skepticism that Herrold met the requirements of the savings clause to *9 bring a 28 U.S.C. § 2241 petition, it ultimately dismissed the petition under the 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, 116 S.Ct. 501. 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, 116 S.Ct. 501. 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).

We have considered Herrold’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

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669 F. App'x 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herrold-v-quay-ca2-2016.

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