Muth v. Fondren, No. 10-35223 (4-3-12) (Graber with Fisher and Rawlinson).

Petitioner traded a gun for meth ... or was it meth for a gun? It matters, because the petitioner was trying to use the "actual innocence" exception to 2255 to get relief for his 10-year consecutive sentence. Petitioner had pled to the count, and then Watson came down, the Supreme Court case that said a firearm as trade was not use. Subsequent to Watson, in Smith, the Court said that one who supplies the gun for trade did in fact "use" the weapon. Petitioner failed to file within the one year AEDPA period, and so had to seek 2241 relief and the actual innocence exception. Alas, for petitioner, the 2241 was construed as a 2255, and the conduct was not actual innocence because it was like Smith -- the petitioner brought the weapon. Although the plea agreement said he received the weapon, he himself corrected it, with counsel, at the colloquy. Interesting discussion about the need for a COA in 2255, but not 2241, and how a characterization of a petition was not to be questioned by a transferring court except for clear error.