United States v. Davies

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

1-13-2005

USA v. Davies

Precedential or Non-Precedential: Precedential

Docket No. 03-1933

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PRECEDENTIAL

IN THE UNITED STATES COURT

OF APPEALS

FOR THE THIRD CIRCUIT

NO. 03-1933

UNITED STATES OF AMERICA

v.

TODD R. DAVIES,

Appellant

On Appeal From the United States

District Court

For the Western District of Pennsylvania

(D.C. Crim. Action No. 98-cr-00079)

District Judge: Hon. Gary L. Lancaster

Argued June 29, 2004

BEFORE: AMBRO, ALDISERT and STAPLETON,

Circuit Judges

(Opinion Filed January 13, 2005)

Lisa B. Freeland (Argued)

Office of Federal Public Defender

1001 Liberty Avenue

1450 Liberty Center

Pittsburgh, PA 15222

Attorney for Appellant

Mary Beth Buchanan

Bonnie R. Schlueter

Kelly R. Labby

Paul M. Thompson (Argued)

Office of the United States Attorney

700 Grant Street - Suite 400

Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Todd R. Davies appeals the District Court’s denial of his

28 U.S.C. § 2255 petition. One of the claims for relief there

2

asserted is now acknowledged to be foreclosed by our case law.

The other two were found by the District Court to be

procedurally barred. Because the Court further concluded that

Davies could not establish cause and prejudice, or actual

innocence, to overcome that bar, the petition was denied. We

hold that Davies has demonstrated that he is “actually innocent”

of the 18 U.S.C. § 844(i) violation at issue here because, “‘in

light of all the evidence,’ [presently before us] ‘it is more likely

than not that no reasonable juror would have convicted him.’”

Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting

Schlup v. Delo, 513 U.S. 298, 327-328 (1995)). Where the

local church that Davies stood accused of burning had no more

than a passive connection to interstate commerce, no reasonable

juror could have concluded that Davies destroyed by fire a

building “used in interstate . . . commerce or in any activity

affecting interstate . . . commerce,” 18 U.S.C. § 844(i). This

showing of “actual innocence” entitled Davies to have both of

his remaining claims for relief resolved on their merits. While

the District Court correctly resolved one of those claims in the

course of determining that Davies had shown no cause and

prejudice for his procedural default, one claim remains

unresolved. Accordingly, we will reverse the judgment of the

District Court and remand for further proceedings.

I.

Davies has had a long history of mental illness, resulting

in significant part, his clinicians opine, from his involvement as

a youth with the Calvary Baptist Church in Butler, Pennsylvania.

On March 12, 1998, about ten years after he was no longer

involved with Calvary Baptist, Davies burned down the church’s

3

building, which was utilized as both a place of worship and a

school.

Davies’s clinicians suggest that he suffered years of

abuse from ages 12 to 16, when he attended school at the

church, due to “overly-strict church governance.” Given our

view of the legal issues presented, it is not necessary for us to

detail those allegations of abuse or provide a summary of

Davies’s resulting mental illness.1 Suffice it to say, Davies’s

clinicians opine that his mental illness affected his behavior on

March 12, 1998. There is no dispute, however, that Davies was

the one who burned down the church.

On May 21, 1998, Davies was charged with violating

18U.S.C. § 844(i). The indictment read:

On or about March 12, 1998 . . . the

defendant . . . did maliciously damage and

destroy, by means of fire, a building which was

used in interstate commerce and in an activity

affecting interstate commerce, which building

was known as the Calvary Baptist Church . . . [i]n

violation of Title 18, United States Code, Section

844(i).

A163. Davies tried unsuccessfully to have the charges

1

Davies insists that he is “actually innocent” of the malice

element of 18 U.S.C. § 844(i) and, accordingly, that he has

cured his procedural default. Because we conclude that he has

cured that default in a different manner, we do not reach that

issue.

4

dismissed. He ultimately pleaded guilty.

At the plea hearing, the prosecutor represented that the

church was

engaged in or affecting interstate commerce in the

sense that moneys collected from the members of

the church were utilized to purchase supplies,

books and other materials outside the

Commonwealth of Pennsylvania. In addition,

funds were raised at the church to support

missions both outside the Commonwealth of

Pennsylvania and outside the United States of

America.

A252.

Davies’s pre-sentence report (“PSR”) concluded that he

was subject to a mandatory statutory minimum sentence of five

years. Davies requested a downward departure on three

grounds, but the District Court held that it was without authority

to depart. Davies appealed, challenging only the

constitutionality of the five-year minimum sentence and the

District Court’s determination that it lacked authority to depart

downward. His conviction and sentence were affirmed by this

Court.

Davies then filed a timely pro se motion to vacate his

conviction pursuant 28 U.S.C. § 2255,2 raising three issues.

2

28 U.S.C. § 2255 provides a one-year period in which to file

an initial motion to vacate that runs from, inter alia, “the date on

5

Taken directly from the petition, they are:

Ground One - There was not a sufficient

factual basis for the guilty plea. At the plea

hearing, the government did not state facts on the

record sufficient to establish an interstate

commerce nexus.

Ground Two - The Court lacked

jurisdiction to accept the plea. The government

did not present a sufficient factual basis for the

interstate commerce element of arson.

which the judgment of conviction becomes final.” Id. “[A]

‘judgment of conviction becomes final’ within the meaning of

§ 2255 on the later of (1) the date on which the Supreme Court

affirms the conviction and sentence on the merits or denies the

defendant’s timely filed petition for certiorari, or (2) the date on

which the defendant’s time for filing a timely petition for

certiorari review expires.” Kapral v. United States, 166 F.3d

565, 577 (3d Cir. 1999). Where, as here, “a defendant does not

file a certiorari petition,” the “judgment of conviction does not

become ‘final’ until the time for seeking certiorari review

expires. A defendant has 90 days from the date on which the

court of appeals affirms the judgment of conviction to file a

petition for a writ of certiorari.” Id. at 570-71 (citing Supreme

Court Rule 13). Davies’s motion, filed within one year plus 90

days from the date his conviction was affirmed by this Court,

was thus timely filed.

6

Ground Three - Denial of effected

assistance of counsel. My counsel did not explain

to me that my conduct did not actually fall within

the definition of the crime charged.

A124-25.3

The District Court first addressed these three grounds for

3

In appointed counsel’s “Amended Motion,” she presented

the same issues in the following manner:

When Mr. Davies’ pro se petition is

construed liberally, as it must be to do substantial

justice, United States v. Garth, 188 F.3d 99, 108

(3d Cir. 1999), it fairly presents the following

legal issues:

(1) The government did not present a

sufficient factual basis with respect to the

interstate commerce element to support Mr.

Davies’ guilty plea;

(2) The Court lacked jurisdiction to accept

Mr. Davies’ guilty plea because the Calvary

Baptist Church building was not used in interstate

commerce or an activity affecting interstate

commerce; and

(3) Mr. Davies’ guilty plea was not

voluntary and intelligent due to the fact that his

counsel provided ineffective assistance during the

plea process.

A145.

7

relief in its March 21, 2002, memorandum order. It concluded

that the trial court possessed jurisdiction to accept Davies’s plea

whether or not the Government presented sufficient evidence to

support a finding in its favor on the interstate commerce element

of the offense. Davies acknowledges before us, as he must, that

relief on this ground is foreclosed by United States v. Williams,

299 F.3d 250, 254 n.3 (3d Cir. 1999). 4

With respect to Davies’s other two grounds for relief, the

District Court ruled that they were procedurally barred because

of his failure to raise them on direct appeal. As a result, the

Court concluded, they could not be addressed on their merits

unless Davies first showed “cause and prejudice” or “actual

innocence.”

From this point on, the proceedings in the District Court

focused on whether Davies could make these showings. He

attempted to do so by insisting (1) that his counsel’s ineffective

assistance in failing to advise him correctly regarding the

evidence necessary to establish an interstate commerce nexus

and in failing to raise the absence of such evidence on appeal

constituted “cause” that resulted in prejudice to him, and (2) that

he was “actually innocent” of the offense of conviction because

4

In Williams, we determined that “[t]he ‘jurisdictional

element’ [of § 844(i)] is merely one element of the criminal

activity . . . and whether it is demonstrated in an individual

circumstance does not affect a court’s constitutional or statutory

power to adjudicate a case.” Williams, 299 F.3d at 254 n.3

(parenthetically quoting United States v. Carr, 271 F.3d 172,

178 (4th Cir. 2001) (internal quotation marks omitted)).

8

the church building was not “used in interstate . . . commerce or

in any activity affecting interstate commerce” as required by 18

U.S.C. § 844(i).

With respect to “cause and prejudice,” the District Court

held that Davies’s counsel during the trial and on direct appeal

had not been ineffective in failing to predict the Supreme

Court’s watershed decision in Jones v. United States, 529 U.S.

848 (2000), a decision issued after the conclusion of Davies’s

appeal. After an evidentiary hearing on the “actual innocence”

issue, the Court further concluded that Davies had failed to

establish that it was “more likely than not that no reasonable

juror would have convicted him [of burning a church with the

requisite interstate nexus].” A20. Davies’s petition was

accordingly dismissed as procedurally barred.

Because Davies’s “cause and prejudice” argument and

his “ineffective assistance of counsel” ground for relief were

essentially coterminous, this third ground for relief was

addressed and fully resolved by the District Court. However,

because of the focus of the proceedings on the procedural

default issues and the Court’s ultimate resolution of those issues

in the Government’s favor, the parties had no occasion to further

develop Davies’s basis for his first ground for relief. Similarly,

because the parties have briefed only the procedural default

issues before us, that claim has not been further developed

during the appellate process. It is clear to us only that it is

intended to constitute a claim separate from Davies’s ineffective

assistance of counsel claim.

As noted earlier, we conclude that Davies has carried his

burden of showing actual innocence on the charge of violating

18 U.S.C. § 844(i). We agree with the District Court, however,

that the performance of Davies’s counsel was not below the

9

constitutional standard of competence. This leaves unresolved

only Davies’s first claim for relief.

II.

We have jurisdiction to review the District Court’s denial

of Davies’s 28 U.S.C. § 2255 motion under 28 U.S.C. § 1291

and § 2253(a). See Jansen v. United States, 369 F.3d 237, 243

(3d Cir. 2004). “In a federal habeas corpus proceeding, we

exercise plenary review of the district court’s legal conclusions

and apply a clearly erroneous standard to the court’s factual

findings.” Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir.

1997).

III.

The Supreme Court recently held that “a federal court

faced with allegations of actual innocence, whether of the

sentence or of the crime charged, must first address all

nondefaulted claims for comparable relief and other grounds for

cause to excuse the procedural default.” Dretke v. Haley, 124

S.Ct. 1847, 1852 (2004). Accordingly, we turn first to Davies’s

claim of ineffective assistance of counsel. Contrary to the view

taken by the District Court, we conclude that this claim was not

procedurally defaulted.

As we have explained, one of Davies’s substantive claims

for relief was that his plea was invalid because he was deprived

of his right to effective assistance of counsel when his attorney

failed to advise him of what the Government would be required

to prove to satisfy the interstate commerce element of § 844(i).

Citing our decision in United States v. Titchell, 261 F.3d 348,

10

352 (3d Cir. 2001), Davies insisted before the District Court that

this kind of claim is not required to be raised on direct appeal

and, accordingly, that it was not procedurally defaulted by his

failure to do so. A373. This view is clearly sound. In Massaro

v. United States, 538 U.S. 500 (2003), the Supreme Court held

that “an ineffective-assistance-of-counsel claim may be brought

in a collateral proceeding under § 2255, whether or not the

petitioner could have raised the claim on direct appeal.” Id. at

504. While Davies has not called Titchell or Massaro to our

attention and may have waived this argument by failing to brief

it on appeal, we take note of it in order to maintain the

continuity of our circuit jurisprudence.5

5

The Supreme Court adopted in Massaro what had already

been our Court’s rule. See, e.g., United States v. DeRewal, 10

F.3d 100, 103-04 (3d Cir. 1993) (holding that a § 2255

petitioner is “not required to show ‘cause and prejudice’ with

respect to his failure to raise his ineffective assistance of counsel

claim on direct appeal,” and suggesting that a § 2255 motion is

ordinarily the proper vehicle for an ineffective assistance claim);

United States v. Jake, 281 F.3d 123, 132 n.7 (3d Cir. 2002)

(“[W]e have stated repeatedly that Sixth Amendment claims of

ineffective assistance of counsel should ordinarily be raised in

a collateral proceeding pursuant to 28 U.S.C. § 2255 rather than

on direct appeal.”); see also United States v. Nahodil, 36 F.3d

323, 326 (3d Cir. 1994) (“Nahodil’s principal claim is that his

counsel was ineffective for improperly advising him to enter a

plea of guilty despite his repeated objections to doing so. A §

2255 motion is a proper and indeed the preferred vehicle for a

federal prisoner to allege ineffective assistance of counsel.”)

11

Our willingness to take note of this precedent does not

aid Davies, however. While we relieve him of the burden of

curing a procedural default, he must nevertheless demonstrate

that he has a meritorious substantive claim for relief based on

the performance of his attorney. For the same reasons that the

District Court refused to recognize Davies’s ineffective

assistance of counsel argument as a showing of cause and

prejudice, we reject it as a substantive ground of relief.

Davies pleaded guilty on December 14, 1998. On May

22, 2000, the Supreme Court issued an opinion with respect to

the interstate commerce element of the federal arson statute, 18

U.S.C. § 844(i). As noted above, the arson statute applies only

where a defendant destroys property “used in interstate . . .

commerce or in any activity affecting interstate . . . commerce.”

Id. Noting that this language could be “susceptible of two

constructions, by one of which grave and doubtful constitutional

questions arise [in light of United States v. Lopez, 514 U.S. 549

(1995)] and by the other of which such questions are avoided,”

the Court reminded that its “duty [was] to adopt the latter.”

Jones v. United States, 529 U.S. 848, 857 (2000). The Court

thus rejected the Government’s proposed expansive construction

of § 844(i) under which any sort of de minimis connection

between interstate commerce and a building would suffice to

make its destruction a federal crime under § 844(i). Instead, the

Court adopted a construction of the interstate commerce element

of § 844(i) whereby that provision would cover “only property

currently used in commerce or in an activity affecting

commerce.” Id. at 859. Accordingly, in Jones, an owner-

(footnote omitted).

12

occupied residence was held not to be property used in

commerce or in an activity affecting commerce, even though it

was purchased with the proceeds of a loan from an out-of-state

lender, was covered by an insurance policy written by an out-of-

state insurer, and was serviced with out-of-state natural gas. As

we will examine in detail infra, Davies suggests that, under

Jones, the burning of a community church not used for any

commercial purpose or purpose affecting commerce falls outside

of the scope of the interstate commerce element of § 844(i).

To demonstrate that his counsel was ineffective, Davies

“‘must [first] show that counsel’s representation fell below an

objective standard of reasonableness.’” United States v. Cross,

308 F.3d 308, 315 (3d Cir. 2002) (quoting Strickland v.

Washington, 466 U.S. 668, 687-88 (1984)). A court “deciding

an actual ineffectiveness claim must judge the reasonableness of

counsel’s challenged conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct.” Strickland, 466

U.S. at 690 (emphasis added). With respect to the

reasonableness of counsel’s conduct, “[o]nly in a rare case can

an attorney’s performance be considered unreasonable under

prevailing professional standards when she does not make an

[argument] which could not be sustained on the basis of the

existing law as there is no general duty on the part of defense

counsel to anticipate changes in the law.” Gov’t of Virgin

Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). “[T]he proper

standard for [measuring minimum constitutional] attorney

performance is that of reasonably effective assistance,”

Strickland, 466 U.S. at 687, and not “exceptional” assistance,

Brown v. United States, 311 F.3d 875, 877 (8th Cir. 2002).

Prior to Jones, a far more expansive interpretation of §

844(i)’s interstate commerce element ruled the day. Case law to

13

that point had required only that the Government show a de

minimis connection to interstate commerce.6 The record

6

See, e.g., United States v. Medeiros, 897 F.2d 13, 16 (1st

Cir. 1990) (“To establish jurisdiction under § 844(i), the

government need show only a de minimis connection to

interstate commerce.”); United States v. Grossman, 608 F.2d

534, 536 (4th Cir. 1979) (“The punishment in § 844(i) of the

unlawful use of explosives in an intrastate activity, but which

has an effect on interstate commerce although de minimis, is

within the power of Congress to enact as an appropriate means

to accomplish a legitimate end under the commerce power.”);

United States v. Shively, 927 F.2d 804, 808 (5th Cir. 1991)

(“Even a de minimis effect on interstate commerce will suffice

to support Congress’ ability to enact [§ 844(i)] under the

Commerce Clause.”); United States v. Martin, 63 F.3d 1422,

1426 (7th Cir. 1995) (“Section 844(i) applies to both businesses

and residences, and reaches arson of any property having even

a de minimis connection to interstate commerce.”) (internal

citations omitted); United States v. Rea, 169 F.3d 1111, 1113

(8th Cir. 1999) (“[T]his Court has held that section 844(i)

reaches arson of any property having even a de minimis

connection to interstate commerce.”) (internal quotation marks

omitted), abrogation recognized by United States v. Rea, 300

F.3d 952, 960 (8th Cir. 2002); United States v. Schwanke, 598

F.2d 575, 578 (10th Cir. 1979) (“Congress has the power to

punish the unlawful use of explosives under the Commerce

Clause even though the effect on interstate commerce may be de

minimis.”).

We had not addressed whether a de minimis connection

14

demonstrates that Davies’s trial and appellate counsel knew that

the church building here regularly purchased supplies from out

of state–a fact that, prior to Jones, would have been sufficient to

meet the interstate comm erce element of § 844(i). See, e.g.,

Schwanke, 598 F.2d at 578 (de minimis connection to interstate

commerce existed where business in building destroyed

“purchased candy, gum and vegetables from” out of state);

United States v. Sweet, 548 F.2d 198, 200-02 (7th Cir. 1977)

(destruction of tavern had sufficient de minimis connection to

interstate commerce where tavern purchased out-of-state liquor

and beer from local distributor).

Davies argues that his counsel had the same case law in

front of her as the lawyers who later would challenge

successfully in the Supreme Court the federal arson conviction

at issue in Jones, and that his lawyer could have mounted a

similar challenge to the interstate commerce element of §

would suffice, but instead focused upon whether the destroyed

building “was used, or intended to be used, in an activity

affecting interstate commerce,” United States v. Gaydos, 108

F.3d 505, 509 (3d Cir. 1997), the language of the interstate

commerce element found in § 844(i) that the Supreme Court

would later address in Jones. We did, however, reject in

Gaydos the argument that “Lopez . . . render[s] § 844(i)

unconstitutional,” id. at 508, which certainly would not have

encouraged Davies’s counsel to argue on direct appeal that

Lopez required, as Jones would later hold, a narrow construction

of § 844(i)’s interstate commerce element.

15

844(i). 7 Davies’s counsel, however, had no duty to predict that

the arguments in Jones would become the law of the land, and

did not act unreasonably in failing to advise Davies of its

teachings before his guilty plea or in failing to rely on those

teachings when pursuing Davies’s direct appeal. Finding no

ineffective assistance of counsel, we will affirm the District

Court’s denial of Davies’s motion to the extent it rested on that

ground. Additionally, there is therefore no basis for Davies’s

assertion of “cause” by way of ineffective assistance of counsel

with respect to his remaining defaulted claim. Accordingly, we

now turn to Davies’s assertion that he is actually innocent and

may thus raise his remaining defaulted claim.

IV.

7

Davies additionally notes that, during briefing for his direct

appeal, this Court decided United States v. McGuire, 178 F.3d

203 (3d Cir. 1999). In McGuire, we questioned whether, after

the Supreme Court’s decision in Lopez, a de minimis connection

to interstate commerce could suffice to bring an act within the

reach of § 844(i). We did not decide whether some greater

connection to interstate commerce would be necessary because,

we noted, the only connection in that case–a container of orange

juice that had traveled interstate–would not even meet that

minimal standard. While McGuire foreshadows that post-Lopez

a heightened connection to interstate commerce might be

necessary under § 844(i), it does not adopt such a heightened

standard and, consequently, does not alter the legal landscape on

the basis of which reasonable counsel at the time of Davies’s

appeal would have pursued an appeal.

16

“To establish actual innocence, [a] petitioner must

demonstrate that, ‘in light of all the evidence,’ ‘it is more likely

than not that no reasonable juror would have convicted him.’”

Bousley, 523 U.S. at 623 (quoting Schlup, 513 U.S. at 327-328

(internal quotation marks omitted)). Davies claims that he is

“actually innocent” of his 18 U.S.C. § 844(i) offense of

conviction because the church building he burned was not “used

in interstate . . . commerce or in any activity affecting interstate

. . . commerce” within the meaning of that statutory text as

interpreted by the Supreme Court in Jones v. United States.

“New reliable evidence is almost always required to

establish actual innocence.” Sweger v. Chesney, 294 F.3d 506,

523 (3d Cir. 2002). 8 “We have held,” however, “that, in certain

circumstances, the lack of new evidence is not necessarily fatal

to an argument that a petitioner is actually innocent.” Cristin v.

Brennan, 281 F.3d 404, 420 (3d Cir. 2002). In Bousley v.

8

“New” evidence in this context does not necessarily mean

“newly discovered” evidence. Two circuit courts have

concluded that Schlup allows a petitioner to offer “newly

presented” evidence (that is, evidence that was not presented to

the trier of fact) and that a petitioner is not limited to offering

only “newly discovered” evidence (that is, evidence discovered

post-conviction). See Gomez v. Jaimet, 350 F.3d 673, 679-80

(7th Cir. 2003); Griffin v. Johnson, 350 F.3d 956, 961-63 (9th

Cir. 2003). We need not weigh in today on the “newly

presented” versus “newly discovered” issues because, as we

note below, we write in the context of a claim that a post-

conviction Supreme Court decision has held that the statute of

conviction does not reach the petitioner’s conduct.

17

United States, 523 U.S. 614 (1998), for example, the Supreme

Court held that a habeas petitioner may demonstrate “actual

innocence” by pointing to post-conviction decisions “holding

that a substantive criminal statute does not reach [his] conduct.”

Id. at 620.

The petitioner in Bousley had pleaded guilty to “using”

a firearm in connection with a drug trafficking crime in violation

of 18 U.S.C. § 924(c)(1). He sought collateral relief from the

resulting conviction, claiming that his plea was not knowing and

intelligent because he was misinformed by the court as to the

nature of the crime charged. Following Bousley’s conviction,

the Supreme Court held in Bailey v. United States, 516 U.S. 137

(1995), that the “use” prong of § 924(c)(1) required the

Government to show “active employment of the firearm.” Id. at

144. Thus, contrary to the previously prevailing view, a

defendant could no longer be “charged under § 924(c)(1) merely

for storing a weapon near drugs or drug proceeds” or for

“placement of a firearm to provide a sense of security or to

embolden.” Id. at 149.

In Bousley, the Court agreed with the Government that

the petitioner had procedurally defaulted his claim that his plea

had not been knowing and intelligent. It held, however, that

Bousley could cure this default by showing that, under the new

Bailey interpretation of “using,” he was “actually innocent” of

violating § 924(c)(1). Accordingly, Bousley had to be afforded

the opportunity to “demonstrate that, ‘in light of all the

evidence, it is more likely than not that no reasonable juror

would have convicted him.’” Bousley, 523 U.S. at 623 (quoting

Schlup, 513 U.S. at 327-28). If successful, Bousley would then

be entitled to have his claim to post-conviction relief considered

on its merits. The Court stressed that “actual innocence” in this

18

context means “factual innocence” and that the Government is

not limited to the existing record to rebut any showing that

petitioner might make. Id. at 624.

Relying on Bousley and our ensuing decision in United

States v. Garth, 188 F.3d 99 (3d Cir. 1999), Davies here seeks

to cure his procedural default by demonstrating that he is

actually innocent of violating § 844(i) as interpreted by the

Supreme Court in Jones. The District Court properly

determined that Davies was entitled to the benefit of Jones in his

effort to show actual innocence and, in accordance with

Bousley, held an evidentiary hearing at which the Government

was permitted to introduce evidence demonstrating that Davies

was not actually innocent of the interstate commerce element of

§ 844(i) under Jones. Thereafter, it determined that the

evidence as a whole established Davies’s guilt. We now apply

the Jones legal standard de novo to the factual determinations

reached by the District Court, none of which were clearly

erroneous. That application leads us to a conclusion contrary to

that reached by the District Court.

A. Jones and the Interstate Commerce Element

of 18 U.S.C. § 844(i)

As we have noted, 18 U.S.C. § 844(i) makes it a federal

crime to “maliciously damage[] or destroy[], or attempt[] to

damage or destroy, by means of fire or an explosive, any

building, vehicle, or other real or personal property used in

interstate or foreign commerce or in any activity affecting

interstate or foreign commerce. . . .” Id. (emphasis added). In

Jones, the Supreme Court concluded that Congress did not

“evoke its full authority under the Commerce Clause” in

19

enacting § 844(i) and that the “key” words here are “the

qualifying words ‘used in’ a commerce-affecting activity.”

Jones, 529 U.S. at 854. By its terms, the statute applies only to

property that is ‘used’ in interstate commerce or in an activity

that affects interstate commerce. This “used in” qualification,

the Court concluded, “is most sensibly read to mean active

employment for commercial purposes, and not merely a passive,

passing, or past connection to commerce. . . .” Id. at 855

(emphasis added). Accordingly, the “proper inquiry . . . ‘is into

the function of the building itself, and then a determination of

whether that function affects interstate commerce.’” Id. at 854

(quoting from United States v. Ryan, 9 F.3d 660, 675 (8th Cir.

1993) (Arnold, C.J., concurring in part and dissenting in part)).

In this context, it is of course “clear . . . that only business-

related activities constitute ‘commerce.’” United States v.

Mennuti, 639 F.2d 107, 109-10 (2d Cir. 1981); see Jones, 529

U.S. at 854-55 n.6 (endorsing Mennuti in relevant part).

“Interstate commerce” is defined as “commerce between any

place in a State and any place outside of that State. . . .” 18

U.S.C. § 841(b).

Applying this interpretation of the statute to the facts

before it, the Jones Court held that “an owner-occupied

residence not used for any commercial purpose does not qualify

as property ‘used in’ commerce or commerce affecting activity.”

Jones, 529 U.S. at 850-51. The owners’ securing natural gas,

a mortgage, and an insurance policy from out of state was found

not to constitute “use” of the property in a commerce or

commerce-affecting activity.

In support of its conclusion, the Court noted that if

nothing more than these de minimis connections to interstate

commerce were required to come within the scope of § 844(i),

20

“hardly a building in the land would fall outside the federal

statute’s domain.” Id. at 857. This fact required adoption of the

petitioner’s narrower construction “[g]iven the [constitutional]

concerns brought to the fore in Lopez” regarding the power of

Congress “to render the ‘traditionally local criminal conduct’ in

which petitioner Jones engaged ‘a matter for federal

enforcement.’” Id. at 858 (quoting United States v. Bass, 404

U.S. 336, 350 (1971)). Section 844(i), the Court concluded, is

not “soundly read to make virtually every arson in the country

a federal offense.” Jones, 529 U.S. at 859.

The text–“used in interstate commerce . . . or in any

activity affecting interstate . . . commerce”–“suggests two

methods by which a building can fall within section 844(i)’s

interstate commerce element: the commercial function of the

property could directly inject it into the stream of interstate . . .

commerce and/or the building’s functions could cause it to be

used in an activity affecting interstate commerce.” United States

v. Rea, 300 F.3d 952, 961 (8th Cir. 2002). We do not

understand the Government to contend that the church Davies

burned was directly in the stream of interstate commerce. It

does insist, however, that the church building was used in

activities affecting interstate commerce. We know from Jones,

however, that for a building to be in that category it must be

“active[ly] employ[ed] for commercial purposes.”

Accordingly, we turn to the question of whether, at the time of

the fire, the Calvary Baptist Church building was so employed.

B. The Calvary Baptist Church

The Calvary Baptist Church building contained a

sanctuary used for religious purposes and a small school. “A

21

church, like the owner-occupied residence considered in Jones,

generally does not function in a manner that places it in any

significant relationship with commerce, let alone interstate

commerce. A church’s primary function is essentially non-

commercial and non-economic.” United States v. Lamont, 330

F.3d 1249, 1254 (9th Cir. 2003); see also Rea, 300 F.3d at 960

(“The fact that a building is a church, without more, however,

does not bring it within the ambit of section 844(i).”); United

States v. Carr, 271 F.3d 172, 179 (4th Cir. 2001) (“[U]se of a

building as a church does not alone qualify it as being ‘used in’

interstate commerce.”). In short, a normal church is no more

“active[ly] used for commercial purposes” than was the

residential home in Jones.

It is true, as the Government insists, that churches can

engage in commercial functions. See Lamont, 330 F.3d at 1255

(describing “megachurches” that offer banking, shopping,

barbershop, and fitness center services and suggesting that these

functions may be sufficiently unrelated to religious worship to

warrant the inclusion of such churches within the scope of §

844(i)). The record regarding the Calvary Baptist Church

building, however, indicates that it was not being “actively used

for commercial purposes.”

At Davies’s actual innocence hearing, the Government

introduced the following evidence in an attempt to show that the

Calvary Baptist Church building was “used in [an] activity

affecting interstate . . . commerce” under § 844(i):

(1) the church building contained a small school that

was not shown to be selling its educational

services. Its 75 students, after graduation,

attended out-of-state universities, some of whom

22

received donations from the church;

(2) the school purchased textbooks, desks, chairs,

sports equipment, trophies, school bus engines,

and school bus tires from out-of-state;

(3) the church raised $24,000 per year from 1989 to

1998 (the year of the arson) to support the

building of an out-of-state church in Wisconsin;

(4) in 1998, the church made $12,000 in donations to

ten missions, nine of which are in foreign

countries and one of which is in California.9

9

Although we operate under the “actual innocence” gateway

whereby the Government may “present any admissible evidence

of petitioner’s guilt even if that evidence was not presented

during petitioner’s plea colloquy,” Bousley, 523 U.S. at 624

(emphasis added), the Supreme Court has limited the

Government to introducing only evidence proving that the

petitioner is guilty of the crime charged in the indictment.

In Bousley, the Government “maintain[ed] that [Bousley]

must demonstrate that he is actually innocent of both ‘using’ and

‘carrying’ a firearm,” both of which the relevant statute there, 18

U.S.C. § 924(c)(1), made a crime. Bousley, 523 U.S. at 624.

The Supreme Court noted, however, that

petitioner’s indictment charged him only with

‘using’ firearms in violation of § 924(c)(1). And

there is no record evidence that the Government

elected not to charge petitioner with ‘carrying’ a

23

We find the Government’s first argument foreclosed by

United States v. Lopez, 514 U.S. 549 (1995). In Lopez, the

appellant had been indicted for violating the Gun-Free School

Zone Act of 1990 by possessing a firearm in what he knew to be

a school zone. He moved to dismiss the indictment on the

ground that the Commerce Clause did not confer upon Congress

the power “to legislate control over . . . public schools.” Id. at

551. The District Court denied the motion, concluding that the

statute was an “exercise of Congress’ well-defined power to

regulate activities in and affecting commerce, and the ‘business’

of elementary, middle and high schools . . . affects interstate

commerce.” Id. at 551-52. In support of this position, the

Government argued as follows:

firearm in exchange for his plea of guilty.

Accordingly, petitioner need demonstrate no more

than that he did not ‘use’ a firearm as that term is

defined in Bailey.

Id.

Although the statute here includes both interstate and

foreign commerce within its reach, Davies need only show that

the building he destroyed was not used in interstate commerce,

as charged by his indictment. The church’s donations to

missions in foreign countries, are, of course, not probative of its

connection to interstate commerce. Accordingly, the

Government’s evidence suggesting that the church raised

donations in 1998 sent to nine foreign missions is irrelevant to

whether Davies destroyed a building used in interstate

commerce, although the evidence indicating that funds were

raised for a California mission remains relevant.

24

[T]he presence of guns in schools poses a

substantial threat to the educational process by

threatening the learning environment. A

handicapped educational process, in turn, will

result in a less productive citizenry. That, in turn,

would have an adverse effect on the Nation’s

economic well-being. As a result, the

Government argues that Congress could rationally

have concluded that [18 U.S.C.] § 922(q)

substantially affects interstate commerce.

Lopez, 514 U.S. at 564.

The Supreme Court rejected this argument, holding that

a public school does not engage in an activity that has sufficient

effects on interstate commerce to bring the statute within

Congress’s power to regulate commerce. In the course of

reaching this conclusion, the Court observed that the statute “by

its terms has nothing to do with ‘commerce’ or any sort of

economic enterprise, however broadly one might define those

terms.” Id. at 561. It took issue with the dissent’s position that

“Congress . . . could rationally conclude that schools fall on the

commercial side of the line,” noting that this view “lacks any

real limits” and would give Congress the authority “to regulate

each and every aspect of local schools.” Id. at 566.

In Lopez, the Supreme Court was interpreting the

Commerce Clause rather than § 844(i). Nevertheless, Lopez

convinces us that the Court does not view a public school as

actively engaged in commerce and we are constrained to

interpret § 844(i) to avoid the constitutional issues that would

otherwise arise under Lopez. Because we cannot distinguish the

25

public school in Lopez from the school operated in the Calvary

Baptist Church, we cannot conclude that the latter’s building

was actively employed for commercial purposes as a result of its

use as a school.

The Government’s added twist here, that some students

eventually went off to out-of-state colleges, would not

distinguish the school within the Calvary Baptist Church

building from most any school. Additionally, the fact that the

school here may have given donations to other out-of-state

schools does not convert the non-commercial role of the church

school (or the out-of-state schools) into a commercial one.

The fact that this local school purchased goods (such as

textbooks, desks, and chairs) from the national economy

incident to running a local school surely is also not enough to

bring its building within the ambit of § 844(i). As the Supreme

Court observed in Jones, “[p]ractically every building in our

cities, towns, and rural areas is constructed with supplies that

have moved in interstate commerce, served by utilities that have

an interstate connection, financed or insured by enterprises that

do business across state lines, or bears some other trace of

interstate commerce.” Jones, 529 U.S. at 857. The owners of

the private home at issue in Jones also undoubtedly purchased

furniture and equipment that moved in interstate commerce, and

the public high school at issue in Lopez also purchased similar

school supplies that moved in interstate commerce. Thus, the

fact that the church school, a non-commercial entity, purchased

goods that have moved in interstate commerce is not enough to

bring its destruction within § 844(i), lest every other local school

in our nation be subject to § 844(i). These types of

“connections” to interstate commerce

26

constitute the type of attenuated contacts with

interstate commerce that this particular church

and most other churches in modern society have,

and that are insufficient to bring a religious entity

within the statutory definition. Jones emphasized

that, in reviewing the application of § 844(i) to a

particular arson, we must look for “active

employment for commercial purposes, and not

merely a passive, passing, or past connection to

commerce.”

Lamont, 330 F.3d at 1256 (quoting Jones, 529 U.S. at 855). The

purchase of goods for use in conducting the activities of a local

school is hardly “active employment for commercial purposes.”

With respect to the fact that the church building was used

to send funds to a Wisconsin congregation, “[t]hat the church

may receive from or transmit funds to a national or religious

entity with which it is affiliated does not mean that its activity

has changed from non-commercial to commercial.” Lamont,

330 F.3d at 1256. The fact that the church building here was

used to send funds to another non-commercial religious

organization in Wisconsin does not somehow mean that both

churches were engaged in interstate commercial activity, or an

activity affecting interstate commerce. Under the Government’s

view, hardly a single church would escape being a “national”

one subject to § 844(i) because the raising of contributions

ultimately sent to support out-of-state religious work would

somehow affect interstate “commerce.”

We are thus left with the fact that the Calvary Baptist

Church raised some portion of $12,000 for a mission in

California. The record does not detail what sorts of activities

27

the California mission undertook. We are mindful, of course,

that we operate under the actual innocence gateway, whereby,

“[t]o establish actual innocence, [Davies] must demonstrate that,

‘in light of all the evidence,’ ‘it is more likely than not that no

reasonable juror would have convicted him.’” Bousley, 523

U.S. at 623 (quoting Schlup, 513 U.S. at 327-328) (internal

quotation marks omitted). But the juror of which this speaks is

a juror instructed that there can be no convictions unless he or

she is persuaded of each element of the offense beyond a

reasonable doubt. The raising of some portion of $12,000

within the Calvary Baptist Church building sometime in 1998

for an out-of-state mission whose activities are not known is

simply not enough to support a finding of “active employment

for commercial purposes,” Jones, 529 U.S. at 855.

Thus, the Government has failed to provide any basis

under which a reasonable juror could determine that the Calvary

Baptist Church building in 1998 was used in an activity

affecting interstate commerce, and Davies has demonstrated that

he is actually innocent of a violation of 18 U.S.C. § 844(i).10

10

Several circuit courts have reached the same conclusion

with respect to church buildings with similarly passive

connections to interstate commerce. See, e.g., Lamont, 330

F.3d at 1256-57 (§ 844(i) did not apply where church purchased

gas, insurance, and supplies from out of state, and several

churchgoers resided out of state); Rea, 300 F.3d at 962

(purchase of supplies for church annex, along with after-school

tutoring program and Sunday school having been conducted in

the annex, were insufficient to bring church annex within scope

of § 844(i)); Odom, 252 F.3d 1289 at 1296-97 (receiving

28

V.

The District Court did not err in declining to grant relief

on Davies’s second and third claims. With respect to his first

claim, we hold only that Davies has made a sufficient showing

to overcome his procedural default and, accordingly, that he is

entitled to have the District Court rule on the merits of that

claim. We will therefore remand to afford it an opportunity for

it to do so.

The parties have not briefed and we express no opinion

on whether Davies’s first claim falls within the strictly limited

circumstances in which § 2255 permits relief from a guilty plea.

As we have earlier noted, we acknowledge some uncertainty as

to the nature of that first claim. At times, it is set forth in a

manner consistent with a claim that the Constitution requires the

presentation of a basis in fact for a plea similar to that required

donations from two out-of-state donors, utilizing books

purchased from out of state, and indirectly contributing to an

out-of-state church organization were connections “too passive,

too minimal and too indirect to substantially affect interstate

commerce”); Johnson, 194 F.3d at 662 (payment of insurance

claim by out-of-state insurer and contribution of funds by church

members to church’s national organization were insufficient to

meet interstate commerce element), vacated and remanded by

530 U.S. 1201 (2000) (in light of Jones), reinstated with one

additional change by 246 F.3d 749 (5th Cir. 2001); see also

United States v. Laton, 352 F.3d 286, 299 n.12 (6th Cir. 2003)

(collecting cases).

29

by Rule 11 of the Federal Rules of Criminal Procedure. At other

times, that claim is presented in a manner consistent with a

contention that a generally prevailing misunderstanding

regarding the interstate commerce element of § 844(i) at the

time of Davies’s plea resulted in that plea being “unintelligent”

and thus constitutionally invalid. See Bousley, 523 U.S. at 618-

19 (“[P]etitioner contends that the record reveals that neither he,

nor his counsel, nor the court correctly understood the essential

elements of the crime with which he was charged. Were this

contention proved, petitioner’s plea would be . . .

constitutionally invalid.”). See also Garth, 188 F.3d at 108-09

(Pro se petitioner’s “assertion that there was no factual

foundation for his guilty plea equates to an assertion of a due

process violation based on being sentenced to prison . . . for

conduct that he did not know was not criminal under [the]

statute.”). We leave it to the District Court to clarify the nature

of that claim, to determine its legal sufficiency, and to ascertain

whether it can be factually supported.

We will reverse the judgment of the District Court and

remand for further proceedings consistent with this opinion.

30