15-3333
    Herrold v. Quay


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 21st day of September, two thousand sixteen.

    PRESENT:    ROBERT A. KATZMANN,
                      Chief Judge,
                ROBERT D. SACK,
                PETER W. HALL,
                      Circuit Judges.
    _________________________________________

    Gene Allen Herrold,

                            Plaintiff-Appellant,

                      v.                                                        15-3333

    Quay, Warden

                            Respondent-Appellee.

    _________________________________________

    FOR APPELLANT:                       Gene Allen Herrold, pro se, Danbury, CT.

    FOR APPELLEE:                        Sandra S. Glover, Henry K. Kopel and Marc H. Silverman,
                                         Assistant United States Attorneys, for Deirdre M. Daly,
                                         United States Attorney for the District of Connecticut, New
                                         Haven, CT.


             Appeal from a judgment of the United States District Court for the District of Connecticut

    (Chatigny, J.).
        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Appellant Gene Allen Herrold, proceeding pro se, appeals from the district court’s

dismissal of his 28 U.S.C. § 2241 petition, brought pursuant to the savings clause of 28 U.S.C.

§ 2255, which argued that the Supreme Court’s decision in Bailey v. United States, 

(1995), rendered invalid his 1993 conviction for using and carrying a firearm during and in relation

to a drug trafficking offense in violation of 18 U.S.C. § 924(c). The district court dismissed the

petition for abuse of the writ because Herrold had declined to pursue a Bailey claim in his multiple

previous habeas petitions. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

        “We review a district court’s denial of a petition for a writ of habeas corpus brought

pursuant to § 2241 de novo and review any factual findings for clear error.” Lugo v. Hudson, 

, 854 (2d Cir. 2015) (per curiam). A district court may dismiss a petition as abusive if it

asserts a claim that could have been raised in a previous petition. Roccisano v. Menifee, 

, 58 (2d Cir. 2002). To avoid such a dismissal, the petitioner must show cause by demonstrating

that “some objective factor external to [him] impeded [his] efforts” in raising the claim and must

also show “actual prejudice.” McCleskey v. Zant, 

, 493-94 (1991) (internal quotation

marks omitted). If a petitioner fails to meet this standard, a court may excuse an abusive petition if

dismissal under the abuse-of-the-writ doctrine would result in a “fundamental miscarriage of

justice.” 

        Upon review, we conclude that the district court did not err in dismissing Herrold’s

petition. Although the district court expressed skepticism that Herrold met the requirements of the

savings clause to bring a 28 U.S.C. § 2241 petition, it ultimately dismissed the petition under the


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abuse-of-the-writ doctrine. Herrold could have raised his Bailey claim in any one of the numerous

§ 2241 petitions that he filed in the Third Circuit, see In re Dorsainvil, 

, 251 (3d Cir.

1997) (holding that, under the savings clause, a petition can raise a Bailey argument in a § 2241

petition), but he declined to do so. His concern about the Third Circuit’s alleged bias against him

does not satisfy the “cause” requirement and, in any event, is belied by the record because he

continuously sought habeas relief in the Third Circuit on other grounds. Furthermore, this

dismissal does not result in a “fundamental miscarriage of justice” warranting review of the merits.

In Bailey, the Supreme Court held that the “use” prong of § 924(c) punishes only “active

employment” (and not mere possession) of a firearm during certain crimes. 

. However, Bailey recognized that “[t]he ‘carry’ prong of § 924(c)(1) . . . brings some offenders

who would not satisfy the ‘use’ prong within the reach of the statute.” 

Herrold was

indicted for both using and carrying a firearm during the commission of a drug trafficking offense

and raises no arguments that relate to his conviction under the carry prong. Moreover, the record

shows that Herrold was properly convicted under the carry prong: A witness testified that Herrold

had a gun during a drug transaction, and Herrold was holding a gun when the police arrested him in

his home, which contained drugs that Herrold had divided for sale. See United States v. Canady,

, 359 (2d Cir. 1997) (holding that the carry prong reaches a defendant who “actually

held the firearm during and in relation to a drug trafficking crime”). Therefore, Bailey’s narrowing

of the term “use” did not call into question Herrold’s conviction under the carry prong of § 924(c).




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       We have considered Herrold’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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