The opinion of the court was delivered by: Caldwell, District J.
While he was imprisoned at LSCI-Allenwood, Pennsylvania, Nuradeen Alamin filed a pro se petition under 28 U.S.C. s 2241 to vacate his convictions under 18 U.S.C. s 924(c)(1) for using a gun during and in relation to a drug trafficking offense, asserting that they are no longer valid under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The convictions were obtained after a plea of guilty to the firearms offenses and to a substantive drug count in the United States District Court for the Western District of North Carolina. Alamin is now incarcerated in FCI-Butner, North Carolina, but we retain jurisdiction.
The government argues that the petition is procedurally barred because Alamin failed to raise the Bailey claim in earlier proceedings and because the Fourth Circuit refused his request to file a second motion under 28 U.S.C. s 2255 that would have litigated the claim. Conversely, Alamin contends that the Third Circuit in In re Dorsainvil, 119 F.3d 245 (3d Cir.1997), has approved the filing of a 2241 petition for a defendant in Alamin's circumstances.
On May 7, 1991, Alamin was named in a 10-count indictment in the Western District of North Carolina on various drug charges and related firearms offenses. The petitioner was a fugitive for some two years and was then apprehended. On September 27, 1993, he entered a plea of guilty to Count One, charging him with a conspiracy to distribute and possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. ss 841 and 846, and Counts Six, Seven, Eight, Nine and Ten, five counts of using and carrying a firearm during and in relation to a drug trafficking offense in violation of section 924(c)(1). Count Eight was later dismissed on motion of the government. Alamin was sentenced to 120 months on Count One and, as required by section 924(c)(1), a consecutive sentence of 60 months on the four remaining firearms charges. (The court ruled that these offenses had merged for the purpose of sentencing.)
At the time of sentencing, a section 924(c)(1) conviction could be sustained in the Fourth Circuit by showing that the firearm had facilitated the drug offense. See United States v. Brockington, 849 F.2d 872 (4th Cir.1988), a different standard from the one the Supreme Court adopted later in Bailey, supra, which requires active employment of the weapon for a valid conviction under the use prong of section 924(c)(1). See United States v. Arrington, 153 F.3d 722 (4th Cir.1998)(recognizing that Bailey had overruled Brockington )(text in Westlaw at 1998 WL 433302).
On July 24, 1995, the petitioner filed his first 2255 motion, raising grounds for relief other than a Bailey-type claim that he was innocent of his section 924(c)(1) convictions. On December 18, 1995, the district court denied the motion. In the meantime, on December 6, 1995, the Supreme Court decided Bailey. The petitioner appealed the denial of the 2255 motion, and the Fourth Circuit affirmed the district court on July 31, 1996. See 91 F.3d 134 (4th Cir.1996)(table).
In January 1997, petitioner moved the Fourth Circuit for permission to file a second 2255 motion, so that he could pursue a claim that his section 924(c)(1) convictions were invalid under Bailey. On July 7, 1997, the Fourth Circuit refused Alamin's request on the implied basis that he could not satisfy the section 2255 requirements for the filing of a second or successive 2255 motion. The petitioner's next attempt at collateral relief was the filing of this 2241 petition.
The government has moved to dismiss the petition by arguing that it is really a second motion under 28 U.S.C. s 2255 and that it is barred because the United State Court of Appeals for the Fourth Circuit has already denied his attempt to file a second 2255 motion raising the Bailey issue, doing so under the gatekeeping provision added to section 2255 in 1996 narrowing the right to file a second or successive 2255 motion. *fn2 The government also argues that the petition cannot succeed under section 2241 because the petitioner procedurally defaulted his Bailey claim by not appealing the denial of his first 2255 motion. Alternatively, the government argues that we should transfer the petition to the Western District of North Carolina for a disposition on the merits.
The petitioner maintains that his 2241 petition is authorized under In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). Additionally, while he is not opposed to a transfer, he argues that before we transfer the case, we should rule, in accord with Dorsainvil, that his petition is not barred by section 2255's gatekeeping provision. Further, he contends that he will be able to overcome judicially-created procedural obstacles to a merits consideration of his 2241 petition by showing, in compliance with Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), that he is actually innocent of the section 924(c)(1) charges. As part of this argument, petitioner maintains that the other charges dismissed as part of the plea bargain need not be considered on the procedural-default issue because, in accord with Bousley, they were not "more serious" than the section 924(c)(1) charges.
We reject the government's contention that this 2241 petition should be dismissed or that it is barred under the gatekeeping provision of section 2255 governing the filing of successive 2255 motions. As Alamin argues, Dorsainvil, supra, presenting similar procedural circumstances involving a ...