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MOORE v. DODRILL

December 8, 2005.

JONATHAN M. MOORE, Petitioner
v.
SCOTT DODRILL., Respondent.



The opinion of the court was delivered by: JOHN JONES III, District Judge

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Petitioner, Jonathan M. Moore ("Petitioner"), an inmate presently confined at the McCreary United States Penitentiary, in Pine Knot, Kentucky, initiated this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("the Petition"). The required filing fee has been paid. The named respondent is the USP-Lewisburg Warden, Scott Dodrill, the warden of Petitioner's place of confinement at the time he filed this action. Petitioner challenges his federal conviction for "use and carry" of a firearm, on the ground that he his actually innocent of the crime. (Rec. Doc. 1). A response and traverse having been filed, the Petition is ripe for disposition.*fn1 For the reasons that follow, the Petition will be denied.

  FACTUAL BACKGROUND AND PROCEDURAL HISTORY

  On September 15, 1992, Petitioner was indicted by a federal grand jury in the Northern District of Ohio. (Rec. Doc. 26, Ex. 1). He was charged with three counts of bank robbery, in violation of 18 U.S.C. § 2113 and three counts of using and carrying a firearm, in violation of 18 U.S.C. § 924(c). (Rec. Doc. 26, Ex. 1). On October 29, 1992, a superseding indictment was returned, naming Petitioner's son, Michael, as an additional defendant. (Rec. Doc. 26, Ex. 2). Trial was scheduled for January 26, 1993. Petitioner failed to appear for trial and the District Court issued a warrant for his arrest. On March 19, 1993, Petitioner was arrested and held without bond. On April 14, 1993, Petitioner was indicted again, for two additional armed bank robberies, in violation of 18 U.S.C. § 2113, two additional counts of using and carrying a firearm, in violation of 18 U.S.C. § 924(c) and one count of failing to appear for trial, in violation of 18 U.S.C. § 3146(a)(1). (Rec. Doc. 26, Ex. 3).

  On December 21, 1993, Petitioner was charged in an information with escape, in violation of 18 U.S.C. § 751(a), for attempting to escape from the Cuyahoga County Jail on May 23, 1993. (Rec. Doc. 26, Ex. 4).

  Petitioner's trial commenced on December 7, 1993. (Rec. Doc. 26, Ex. 5). Opening arguments were made and the government commenced its case-in-chief. Evidence was presented, and seven witnesses testified, with respect to counts one and two of the September 15, 1992 indictment, concerning the bank robbery and petitioner's use and carrying of a firearm. On the second day of trial, Petitioner withdrew his plea of not guilty and entered a plea of guilty in accordance with a signed plea agreement. (Rec. Doc. 26, Ex. 6).

  On December 8, 1993, Petitioner entered a guilty plea to three counts of armed bank robbery, in violation of 18 U.S.C. § 2113, one count of using and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), one count of failure to appear for trial, in violation of 18 U.S.C. § 3146(a), and one count of escape, a violation of 18 U.S.C. § 751. (Rec. Doc. 26, Ex. 7). The government agreed to dismiss the two remaining counts of bank robbery and four remaining counts of use and carrying a firearm.

  On December 22, 1993, Petitioner was sentenced to a concurrent 235 month term of imprisonment on the bank robbery, escape and failure to appear charges and a consecutive 60 month term of imprisonment for the use and carrying a firearm charge, for a total sentence of 295 months. (Doc. 26, Ex. 8).

  On January 7, 1994, Petitioner filed a Notice of Appeal, which was subsequently withdrawn in October, 1994, in order to allow Petitioner to file a motion to set aside his conviction, pursuant to 28 U.S.C. § 2255. The trial court denied Petitioner relief on his motion to set aside his conviction. Petitioner filed an appeal to the United States Court of Appeals for the Sixth Circuit, arguing that trial counsel rendered ineffective assistance. (Rec. Doc. 26, Ex. 9). On November 17, 1995, the Court of Appeals affirmed the District Court, finding that counsel properly investigated Petitioner's case and that the District Court properly accepted Petitioner's guilty plea in light of counsel's pre-trial investigation and Petitioner's testimony regarding his involvement in the bank robberies. (Rec. Doc. 26. Ex. 9); Moore v. United States, 70 F.3d 1272, 1995 WL 693313 (6th Cir. 1995).

  On December 1, 2003, Petitioner filed the instant Petition in which he challenges his conviction for using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). (Rec. Doc. 1). Specifically, Petitioner claims that he is entitled to relief under the § 2255 savings clause on the basis that, under the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995), decided after the decision on Petitioner's initial § 2255 motion, the evidence is insufficient to show that he "actually employed a firearm" for purposes of a § 924(c)(1) conviction. Id. By Order dated November 19, 2004, this Court determined that Petitioner may pursue his claim in the form of a § 2241 petition. (Rec. Doc. 17).

  DISCUSSION

  In Bailey, the United States Supreme Court clarified the meaning of the term "use" under § 924(c)(1). In particular, the Supreme Court held that "§ 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Bailey, 516 U.S. at 142. The Supreme Court held that the term "use" must entail more than mere possession of a firearm by a person who commits a drug offense, rather, the prosecution must show active employment of the firearm. See id. at 148. To illustrate the activities that fall within the definition of "use," the Supreme Court held that brandishing, displaying, bartering, striking with, and firing or attempting to fire a firearm are included in the term "use." See id. Also, an offender's reference to a firearm in his possession calculated to bring about a change in the circumstances, as well as the silent but obvious and forceful presence of a gun on a table can be a "use" under § 924(c)(1). See id. However, mere storage of a weapon near drugs or drug proceeds is not "use" under § 924(c)(1). Moreover, when an offender conceals a gun nearby to be at the ready for an imminent confrontation it is not a "use" if the gun is not disclosed or mentioned by the offender.

  With this standard in mind, this Court will now look at the record to determine whether the activities of the Petitioner as set forth in Count 2 constitute "use" under § 924(c). In Count 2, Petitioner was charged with using and carrying a firearm during and in relation to the armed bank robbery of the Home Savings and Loan in August, 1991. The testimony presented on the first day of trial consisted ...


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