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