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February 1, 1996


The opinion of the court was delivered by: LARIMER

 On May 6, 1992, after a jury trial, defendant, Tracy Andrew Turner, was convicted on one count of using a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and sentenced to five years imprisonment plus three years of supervised release. Turner has now filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. The Government does not oppose the motion. For the reasons that follow, the motion is granted.


 I. Retroactive Application of Bailey v. United States

 On December 6, 1995, more than three years after Turner's conviction had been affirmed by the Court of Appeals for the Second Circuit, the United States Supreme Court issued its decision in Bailey v. United States U.S. , 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). The Court in Bailey held that to obtain a conviction for use of a firearm under § 924(c)(1), the Government must prove "an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." 116 S. Ct. at 505. The Court held that the facts in the two consolidated cases under review, in which a firearm had been found in a bag in the locked trunk of one defendant's car, and in a footlocker in the other defendant's bedroom closet, were insufficient to support the defendants' convictions.

 In so ruling, the Supreme Court implicitly overruled prior Second Circuit authority holding that a defendant could be convicted under § 924(c)(1) based on evidence that the firearm was physically available to the defendant or that the defendant intended to use it if the need arose. See, e.g., United States v. Fermin, 32 F.3d 674, 678 (2d Cir. 1994) (firearm in closet), cert. denied, U.S. , 115 S. Ct. 1145 (1995); United States v. Torres, 901 F.2d 205, 217-18 (2d Cir.) (firearm underneath mattress), cert. denied, 498 U.S. 906 (1990); United States v. Alvarado, 882 F.2d 645, 654 (2d Cir. 1989) (firearm inside locked safe), cert. denied, 493 U.S. 1071, 107 L. Ed. 2d 1021, 110 S. Ct. 1114 (1990); United States v. Meggett, 875 F.2d 24, 29 (2d Cir.) (firearms found behind a chair, in a nightstand drawer, in a dresser drawer, and leaning against wall).

 Before analyzing the facts of Turner's case under the standard set forth in Bailey, however, it is necessary to decide whether Bailey should be applied retroactively. Under the general principles of retroactivity that have been established by the Supreme Court and the Second Circuit, I find that it should.

 In Davis v. United States, 417 U.S. 333, 41 L. Ed. 2d 109, 94 S. Ct. 2298 (1974), the Supreme Court held that in deciding whether a petitioner mounting a collateral attack on his conviction should be given the benefit of case law decided after his conviction, "the appropriate inquiry [is] whether the claimed error of law was a 'fundamental defect which inherently results in a complete miscarriage of justice,' and whether 'it present[s] exceptional circumstances where the need for the remedy afforded'" by collateral relief is apparent. Id. at 346. On the facts before it, the Court held that where the defendant's conviction, which had been affirmed by the Court of Appeals for the Ninth Circuit, was later called into question by another Ninth Circuit case on almost identical facts, the injustice that would occur if the new Ninth Circuit case were not applied retroactively would be sufficiently egregious to warrant retroactivity. The Court stated that to uphold a conviction "for an act that the law does not make criminal ... 'inherently results in a complete miscarriage of justice' and 'present[s] exceptional circumstances' that justify collateral relief under § 2255." Id. at 346-47.

 The continued vitality of Davis is not affected by the Supreme Court's subsequent decision in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), which held that new constitutional rules of criminal procedure are generally not to be applied retroactively. Teague and its progeny deal with changes in procedural law, and therefore left intact Davis's applicability to the retroactivity of decisions dealing with substantive criminal law. Ianniello v. United States, 10 F.3d 59, 63 (2d Cir. 1993). Since Bailey dealt with the meaning of a substantive criminal statute, its retroactivity is governed by Davis rather than Teague, for "'a statute cannot "mean one thing prior to the Supreme Court's interpretation and something entirely different afterwards."'" United States v. Dashney, 52 F.3d 298, 299 (10th Cir. 1995) (quoting United States v. Shelton, 848 F.2d 1485, 1489 (10th Cir. 1988)). See also United States v. McKie, 73 F.3d 1149, 1996 U.S. App. LEXIS 741, *8, 1996 WL 20689 *3 (D.C.Cir. 1996); Chambers v. United States, 22 F.3d 939, 942 (9th Cir. 1994), vacated on other grounds, 47 F.3d 1015 (1995).

 The Second Circuit has given retroactive effect to cases that alter substantive criminal law if, under the "new" case, a previously-convicted defendant could be found not to have committed the offense. For example, in Ianniello, 10 F.3d 59, the court applied retroactively a Second Circuit case that added a "relatedness" requirement to the elements necessary to prove a "pattern" of activity under the RICO statute, stating that otherwise the defendant could "suffer[] a fundamental wrong: conviction for conduct that is not illegal." Id. at 62.

 The same reasoning applies in the case at bar. As noted, Bailey overruled prior Second Circuit authority by raising the threshold of proof needed to establish a defendant's use of a firearm under § 824(c)(1). Because a defendant convicted under the prior construction of the statute might not be guilty under Bailey, Bailey should be applied retroactively to such cases.

 II. Application of Bailey to Turner's Case

 As the Government concedes on this motion, the proof at the trial concerning Turner's use of a firearm was no stronger than the proof in Bailey. Turner was arrested in a guest bedroom on the second floor of a residence. After Turner was taken into custody, the police conducted a search of the house and found a handbag on a table in the downstairs living room. The handbag ...

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