On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Crim. No. 90-00039)
BEFORE: GREENBERG, ALITO, and ROSENN, Circuit Judges
GREENBERG, Circuit Judge.
Appellant, Robert G. Eyer, appeals from an order entered on April 11, 1996, denying his motion filed pursuant to 28 U.S.C. Section(s) 2255 ("section 2255"). On February 13, 1990, a grand jury returned a one-count indictment charging Eyer with using and carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. Section(s) 924(c)(1) ("section 924(c)(1)"). Eyer waived trial by jury, and was convicted at a bench trial on May 21, 1990. On August 10, 1990, the district court sentenced Eyer to a five-year custodial term followed by a three-year term of supervised release to be served consecutively to any sentence he then was serving.
On February 28, 1996, Eyer, through an attorney,filed a motion under section 2255 to vacate, set aside, or correct his sentence. The motion included a brief contending that in Bailey v. United States, 116 S.Ct. 501 (1995), the Supreme Court held that a defendant cannot be convicted of a violation of section 924(c)(1) unless he "actively employs the firearm in connection with the drug trafficking offense." The brief further asserted that "active employment" includes "brandishing, displaying, bartering, striking with, firing, attempting to fire, or referencing the firearm" but does not "include possession of a firearm at or near the site of a drug crime, storing a weapon near drug proceeds, or concealing a firearm nearby to be ready for imminent confrontation."
The brief quoted the presentence report which explained that a person cooperating with a drug task force placed an order with Eyer for an ounce of cocaine to be delivered to the purchaser's apartment. When Eyer arrived with the cocaine the officers arrested him and seized the automobile in which he was making the delivery. The officers then obtained a search warrant and searched the vehicle, finding a fully loaded Colt .380 caliber semi-automatic hand gun with a live round in its chamber located in the console between its front seats along with some cocaine. Notwithstanding the location of the firearm, in his motion Eyer claimed that there was "no evidence that[he] actively employed the handgun." Thus, in his view, the government's proof could not support the conviction under section 924(c)(1) as construed in Bailey. Accordingly, Eyer requested that the district court vacate his conviction and sentence.
After the parties filed further pleadings, the district court, without holding a hearing, ruled on the section 2255 motion in a memorandum accompanying the order of April 11, 1996. The court pointed out that Bailey applied only to the "using" prong of section 924(c)(1) which speaks of a defendant who, in the disjunctive, "uses or carries a firearm" in relation to any crime of violence or drug trafficking crime. The court then held that Eyer was carrying the gun because he was transporting it by vehicle. The court cited several cases in support of this holding including United States v. Pineda-Ortuno, 952 F.2d 98, 103-04 (5th Cir. 1992), and United States v. Freisinger, 937 F.2d 383, 387-88 (8th Cir. 1991). Based on these conclusions, the district court denied the motion.
Eyer then appealed to this court and sought a certificate of appealability from both the district court and this court. On July 1, 1996, the district court granted a certificate of appealability. Its order, however, does not specify the issue or issues warranting granting the certificate notwithstanding that 28 U.S.C. Section(s) 2253(c)(3) ("section 2253(c)(3)") requires a certificate of appealability under 28 U.S.C. Section(s) 2253(c)(1) ("section 2253(c)(1)") to indicate the issues justifying its issuance. This court has not acted on Eyer's application to it for the certificate of appealability. The parties have briefed the case both on the procedural issues and on the merits and have argued orally. We exercise plenary review.
The first issue is whether the district court properly issued the certificate of appealability. The government contends that the district court could not do so because only a circuit justice or a circuit judge can issue a certificate of appealability. Thus, the government argues that unless we ...