United States v. Perkins

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 27, 1998
• Docket: 96-11457
• Status: Unpublished

Opinion

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

2 § 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

3 Because we lack jurisdiction to consider Perkins’s §

2255 claim, this case is dismissed.

DISMISSED.