Bruce v. Warden Lewisburg USP

• Decision Date: 22 August 2017
• Docket Number: No. 14-4284,14-4284
• Citation: 868 F.3d 170
• Parties: Charles Gray BRUCE, a/k/a Charles Gary Bruce, Appellant v. WARDEN LEWISBURG USP
• Court: U.S. Court of Appeals — Third Circuit

868 F.3d 170

Charles Gray BRUCE, a/k/a Charles Gary Bruce, Appellant

v.WARDEN LEWISBURG USP

No. 14-4284

United States Court of Appeals, Third Circuit.

Argued: October 26, 2016

Filed: August 22, 2017

Rajeev Muttreja, Esq. [ARGUED], Jones Day, 250 Vesey Street, New York, NY 10281, Counsel for Appellant

Edward L. Stanton III, Esq., John D. Fabian, Esq., Kevin G. Ritz, Esq. [ARGUED], Office of United States Attorney, 167 North Main Street, Suite 800, Memphis, TN 38103, Peter J. Smith, Esq., Carlo D. Marchioli, Esq., Mark E. Morrison, Esq., Office of United States Attorney, 228 Walnut Street, P.O. Box 11754, 220 Federal Building and Courthouse, Harrisburg, PA 17108, Anthony D. Scicchitano, Esq., Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Before: FISHER,^* VANASKIE, and KRAUSE, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

Some 26 years ago in a small town located in western Tennessee, Danny Vine and Della Thornton were murdered. Vine's home-based business was robbed and burned down with his and Thornton's bodies inside. Not long after, state and local law enforcement began to suspect Charles Gary Bruce and three others. Federal authorities later became involved, leading to Bruce's 1996 conviction for various federal crimes, including two counts of witness tampering murder for killing Vine and Thornton. For his wrongdoing, Bruce received a sentence of life without parole plus ten years in prison.

Fifteen years later, the Supreme Court handed down Fowler v. United States , 563 U.S. 668, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011), a decision that interpreted the statute under which Bruce was convicted. That statute makes it a crime "to kill another person, with intent to ... prevent the communication by any person to a law enforcement officer ... of the United States ... of information relating to the ... possible commission of a Federal offense." 18 U.S.C. § 1512(a)(1)(C). Fowler addressed situations like Bruce's, where the defendant killed a person with the intent to prevent communication with law enforcement officers in general but did not have federal officers in mind at the time of the offense. In light of Fowler , Bruce now claims that he was convicted of conduct that is not a crime under the statute.

Ordinarily, federal prisoners collaterally challenging their convictions or sentences must seek relief pursuant to the remedial framework set out in 28 U.S.C. § 2255. But Bruce never pursued his current statutory interpretation argument on direct appeal or in his initial § 2255 motion. And § 2255(h) does not permit a second bite at the habeas apple for previously unavailable rules of statutory interpretation. Bruce instead invokes § 2255's saving clause, which allows a federal prisoner to seek a writ of habeas corpus under 28 U.S.C. § 2241 when § 2255's remedy "is inadequate or ineffective to test the legality of his detention." § 2255(e).

The District Court read our Circuit precedent as permitting Bruce to pass through the saving clause to § 2241, but declined to grant the writ. We hold that the District Court properly exercised jurisdiction under § 2241. And after careful review of the record, we also conclude that this is not the extraordinary case in which a successful showing of actual innocence has been made. The judgment of the District Court will therefore be affirmed.

I

A

In December 1990, Charles Gary Bruce (Gary Bruce or Bruce) was experiencing financial difficulty. Together with his brothers Jerry and Robert, Gary Bruce devised a scheme to rob a mussel shell camp in Camden, Tennessee operated by Danny Vine. The Bruces believed that Vine, a local mussel shell buyer, carried large amounts of cash and that his camp, being secluded in the woods, would be easy to rob.

Camden is located in Benton County, not far from the Kentucky Lake, a large artificial reservoir created by the impounding of the Tennessee River by the Kentucky Dam. During the 1990s, the harvesting, processing, and exportation of freshwater mussel shells was a thriving industry in Tennessee. Divers would take the shells from the Kentucky Lake or the Tennessee River and sell them to local buyers like Vine, who served as purchasing agents for large companies. The buyers then transported their shells to the company for which they worked, where the meat was removed and the shells shipped overseas, most often to Japan. There, producers used the white lining of the mussel shells to manufacture cultured pearls.

On January 15, 1991, joined by their friend David Riales, the Bruces agreed that they would rob Vine's camp. They decided to kill anyone who was there and do whatever it took to take the shells. The following day, the group purchased several cans of gasoline from a local gas station and carried out their plan. When they arrived, Vine was present at the camp with his fiancée, Della Thornton, and their puppy. Gary Bruce tied up Vine and Thornton, who were both shot in the head at point-blank range with Gary's gun—Gary shot Vine, and Jerry shot Thornton. The group then poured gasoline on Vine and Thornton's bodies and throughout the house. Finally, they set the house ablaze and drove away with Vine's truck full of mussel shells.

Vine, Thornton, and their puppy's charred remains were discovered by the local sheriff's department three days later. Special Agent Alvin Daniel of the Tennessee Bureau of Investigation (TBI) was then assigned to the case. Through forensic evidence, state and local authorities identified Vine and Thornton as the victims and determined that the two had been shot in the head prior to the fire. The state fire marshal concluded that gasoline was used to set fire to the house and burn the bodies. Beyond that, investigators had limited physical evidence and no leads.

A few weeks after the murders, investigators learned of several suspicious sales of mussel shells by Gary Bruce's wife and brothers. At that point the Bruces became suspects. Ballistics testing, including a search warrant to recover bullets fired into a tree on Gary Bruce's property, led Special Agent Daniel to determine that Bruce's gun was used to shoot Vine and Thornton. The investigation became drawn out, however, by the unwillingness of witnesses to speak to state and local law enforcement.

Eventually Daniel approached the local United States Attorney's Office for assistance. A federal grand jury investigation commenced to hear testimony from witnesses, several of whom later indicated that their fear of the Bruces prevented them from cooperating prior to the involvement of federal authorities. The Federal Bureau of Investigation and the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) also became involved.

B

On November 1, 1993, a grand jury sitting in the Western District of Tennessee issued an indictment charging Gary, Jerry, and Robert Bruce, as well as David Riales, each with two counts of witness tampering murder, in violation of 18 U.S.C. § 1512(a)(1)(C). The eight-count indictment also included charges of Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, use of a firearm to commit robbery and murder, arson, use of fire to commit robbery and murder, and conspiracy to obstruct justice. Kathleen Bruce, the mother of the Bruce brothers, was also charged with conspiracy to obstruct justice, in addition to facing separate counts of lying to a grand jury and witness tampering by threat or intimidation.

Gary Bruce was detained at the McNary County, Tennessee jail pending trial. He escaped on July 27, 1994, and remained at large for 14 months. While a fugitive, a jury convicted Bruce's codefendants on all counts, except that Kathleen Bruce was acquitted of her witness tampering charge. The Sixth Circuit affirmed their convictions, United States v. Bruce , 100 F.3d 957, 1996 WL 640468 (6th Cir. Nov. 5, 1996) (unpublished table decision), and the Supreme Court denied certiorari, 520 U.S. 1128 (1997).

Gary Bruce's trial commenced on July 29, 1996. As to the witness tampering murder counts, the district court instructed the jury that, to convict, it must find beyond a reasonable doubt (1) that Bruce killed another person, (2) with the intent to prevent the communication of information to a law enforcement officer, and (3) that the information related to the commission of a federal crime. J.A. 1004-05. No instruction was given that the potential communication of information needed to be to a federal law enforcement officer. The jury convicted Bruce on all counts, including a separately-indicted charge of escape. The district court sentenced Bruce to life without parole, plus another ten years for his pre-trial escape. The Sixth Circuit affirmed Bruce's convictions, United States v. Bruce , 142 F.3d 437, 1998 WL 165144 (6th Cir. Mar. 31, 1998) (per curiam) (unpublished table decision), and the Supreme Court denied certiorari, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998).

Since his convictions became final, Bruce has unsuccessfully sought post-conviction relief several times, proceeding pro se throughout. In June 2008, Bruce filed a motion under 28 U.S.C. § 2255 in the United States District Court for the Western District of Tennessee. That court denied the motion. Both the district court and the Sixth Circuit denied a certificate of appealability. In 2012 and 2013, Bruce sought authorization to file second or successive § 2255 motions, but the Sixth Circuit denied those requests. It was not until the 2013 motion that Bruce invoked Fowler v. United States , 563 U.S. 668, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011). In denying the 2013 motion, the Sixth Circuit reasoned that Bruce failed to satisfy § 2255(h)'s limitations on second or successive motions because Fowler created a rule of statutory interpretation, not constitutional law, and has not been held by the Supreme Court to apply retroactively in cases on collateral review. In re Bruce , 2013 U.S. App. LEXIS 25436, at *4-5 (6th Cir. ...