UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 97-7292
JOSEPH FRANCIS SHEA, a/k/a Diamond
Joe,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CR-93-55, CA-96-1198-2)

Submitted: November 17, 1998

Decided: March 30, 1999

Before ERVIN, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Dismissed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

Joseph Francis Shea, Appellant Pro Se. Kevin Michael Comstock,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Vir-
ginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Joseph F. Shea appeals the district court order denying relief on his
motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998).
We grant a certificate of appealability as to whether Shea was
deprived of effective assistance of counsel in violation of the Sixth
Amendment upon his claim that counsel did not inform him that the
Government conceded there was no factual basis for count four of the
indictment that charged Shea with a violation of 18 U.S.C.
§ 924(c)(1) (1994). We also vacate that portion of the district court's
order denying relief on this issue and remand for further proceedings
in the district court. We deny a certificate of appealability and dismiss
the appeal in all other respects.

The district court concluded that Shea's motion was barred by the
one-year statute of limitations period of § 2255. Shea's conviction
became final on May 31, 1994, and he filed the § 2255 motion on
December 6, 1996. Shea filed an amended § 2255 motion and a
motion for leave to file the amended motion on March 19, 1997,
which the court granted on April 23, 1997, and ordered Shea to file
a consolidated § 2255 motion including the claims raised in the initial
and amended § 2255 motions. Shea filed his consolidated motion on
June 30, 1997. The consolidated motion merely combined the claims
raised in his initial and amended § 2255 motions. The court concluded
that the statute of limitations began to run on May 4, 1994, when
Shea's conviction became final. The court also concluded that the
§ 2255 motion was filed on June 30, 1997 and was therefore
untimely.

The district court did not have the benefit of our recent opinion in
Brown v. Angelone, 

(4th Cir. 1998). In Brown, this
Court held that motions challenging convictions made final prior to
the enactment of the Antiterrorism and Effective Death Penalty Act

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of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (effective
Apr. 24, 1996) are timely, so long as the motion is filed on or before
April 23, 1997. Shea's § 2255 motion, his amended § 2255 motion,
and the court's granting of Shea's motion to amend his § 2255 motion
were all filed on or before April 23, 1997. The consolidated § 2255
motion, filed on June 30, 1997, merely included claims which were
previously filed with the court. We therefore conclude that Shea's
§ 2255 motion was filed within the one-year limitations period
because all of his claims were filed on or before April 23, 1997.

Notwithstanding our conclusion that Shea's § 2255 motion was
timely, the district court did not commit reversible error in dismissing
the motion as to all of Shea's claims but one. Shea's claims concern-
ing the alleged error in the judgment order, the decision to order that
the federal sentences be served consecutively to the state sentence,
and the failure to make factual findings before ordering restitution
should have been raised on direct appeal. See Stone v. Powell, 

, 477 n.10 (1976). This Court did not consider the merits of
Shea's appeal and dismissed the appeal because he knowingly and
voluntarily waived his right to appeal any sentence which fell below
the statutory maximum. See United States v. Shea , 

(4th Cir. May 31, 1994) (No. 93-5850) (unpublished).

To obtain collateral relief based on errors not raised on appeal,
Shea must show "cause" excusing his procedural default and "actual
prejudice" resulting from the error of which he complains. See United
States v. Frady, 

, 167-68 (1982). Shea cannot show
cause because he waived his right to appeal. See United States v.
Pipitone, 

, 39 (2d Cir. 1995). We therefore deny a certifi-
cate of appealability and dismiss as to these claims.

As for Shea's claim that the evidence was insufficient to sustain his
guilty plea to the § 924(c)(1) charge, our review of a transcript of the
plea hearing discloses that Shea knew he was pleading guilty as an
aider and abettor. Furthermore, Shea's reliance on Bailey v. United
States, 

(1995), is misplaced. Bailey did not alter aiding
and abetting liability for § 924(c)(1) violations. See, e.g., United
States v. Wilson, 

, 305 (4th Cir.), cert. denied, ___U.S.
___, 

(U.S. May 26, 1998) (No. 97-8750); see also
Barrett v. United States, 

, 901 (8th Cir. 1997) (per

                     3
curiam). Shea's challenge to the court's subject matter jurisdiction
must also fail since Shea conceded at the guilty plea hearing that the
jewels traveled in interstate commerce. See United States v. Paredes,

, 843-44 (11th Cir. 1998) (minimal impact on interstate
commerce is sufficient to give the court subject matter jurisdiction).
In addition, there is no evidence of prosecutorial misconduct. The
Government informed Shea's counsel that there was no factual basis
for one of the § 924(c)(1) charges as soon as it discovered the defi-
ciency. We therefore deny a certificate of appealability and dismiss
the appeal as to all of these claims as well.

As for Shea's ineffective assistance of counsel claim, however, we
find that Shea has made a substantial showing of denial of a constitu-
tional right, and we grant a certificate of appealability as to this claim.
Shea had a constitutional right to effective assistance of counsel at the
guilty plea hearing. See Hill v. Lockhart, 

, 58-59 (1985).

Shea was indicted on numerous charges resulting from two rob-
beries, including two violations of using a weapon during a crime of
violence in violation of § 924(c)(1). He agreed to plead guilty to two
charges in the indictment, including one of the§ 924(c)(1) charges,
in exchange for the Government's dismissal of the remaining charges.
After Shea entered into the plea agreement, but before pleading
guilty, the Government informed his counsel that there was no factual
basis for the § 924(c)(1) charge that was to be dismissed as part of the
agreement.* Shea attests under penalty of perjury that his counsel
never gave him this information. Shea explains that he believed he
was avoiding a mandatory twenty-year consecutive sentence by
agreeing to plead guilty to the one § 924(c)(1) charge in exchange for
the Government's dismissal of the other § 924(c)(1) charge. Shea fur-
ther contends that had he known that there was no factual basis for
the dismissed § 924(c)(1) charge, he would not have pled guilty to the
other § 924(c)(1) charge and would have insisted on a trial. In the
§ 2255 proceedings, neither the district court nor the Government
addressed the merits of this claim.
_________________________________________________________________
*Specifically, the Government conceded that the weapon that was the
basis of the § 924(c)(1) charge was a BB gun. According to the Govern-
ment, a BB gun does not meet the definition of a firearm under 18 U.S.C.
§ 921(a)(3) (1994).

                     4
We therefore grant a certificate of appealability as to whether Shea
was deprived of effective assistance of counsel in violation of the
Sixth Amendment upon his claim that counsel did not inform him that
there was no factual basis for the dismissed § 924(c)(1) charge. We
also vacate that part of the district court's order dismissing Shea's
§ 2255 motion on this issue and remand that claim for further pro-
ceedings in the district court. We deny a certificate of appealability
and dismiss the appeal from the court's order in all other respects. We
deny Shea's motions to correct, to amend, and to supplement the
record. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

DISMISSED IN PART, VACATED IN PART,
AND REMANDED

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