Colvin v. U.S.

• Decision Date: 28 December 2001
• Docket Number: Nos. ED CV 01-361-RT, ED CR 97-32-RT.,s. ED CV 01-361-RT, ED CR 97-32-RT.
• Parties: Bobby Joe COLVIN, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Central District of California

181 F.Supp.2d 1050

Bobby Joe COLVIN, Movant, v. UNITED STATES of America, Respondent.

Nos. ED CV 01-361-RT, ED CR 97-32-RT.

United States District Court, C.D. California, Eastern Division.

December 28, 2001.

COPYRIGHT MATERIAL OMITTED

James L. Waltz, Esq., Laguna Hills, CA, for Movant.

John S. Gordon, United States Attorney, Ronald L. Cheng, Assistant United States Attorney, Acting Chief, Criminal Division, William W. Carter, Assistant United States Attorney, Los Angeles, CA, for Respondent.

ORDER DENYING MOVANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

TIMLIN, District Judge.

The court, Judge Robert J. Timlin, has read and considered Movant Bobby Joe Colvin ("Colvin")'s motion ("Motion") to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"), respondent United States of America ("government")'s answer, and Colvin's traverse.¹ Based on such consideration, the court concludes as follows:

I.

BACKGROUND

Between approximately July 1996 and February 1997 Colvin arranged for 5.4 million pounds of screw press rejects ("waste") to be dumped on the Lady Lu Ranch ("Lady Lu"). Lady Lu is located on the northern shoreline of the Salton Sea. Once deposited on Lady Lu, the waste was spread by Covlin, using a bulldozer, throughout Lady Lu. Some of the waste ended up in the Salton Sea.²

On September 9, 1997 Colvin was charged in a one-count indictment with discharging pollutants into navigable waters of the United States without a permit, in violation of the Clean Water Act, 33 U.S.C. § 1319(c)(2)(A) ("CWA"). At the end of a five-day jury trial, the court read the following jury instructions, in pertinent part:

• In order for the defendant[] to be found guilty ... the government must prove each of the following beyond a reasonable doubt:

First, the defendant[] knowingly discharged a pollutant;

Second, the pollutant was discharged from a point source;

Third, the pollutant entered waters of the United States; and

Fourth, the discharge was unpermitted.

• The term "point source" is defined in the Clean Water Act to mean "any discernable, confined, and discreet conveyance, including but not limited to any ... container ... or vessel ... from which pollutants are or may be discharged." Trucks and bulldozers which discharge pollutants are point sources.

• In order for the Salton Sea to constitute a water of the United States, as defined by the Clean Water Act, you must find beyond a reasonable doubt any one of the following:

(1) That the Salton Sea is used by interstate or foreign travelers for recreational or other purposes; or

(2) That the Salton Sea may provide a habitat for migratory birds or endangered species.

The jury convicted Colvin on May 21, 1999. However, the jury did not use a special verdict form to record the basis on which it found that the Salton Sea was a "water of the United States."

The conviction was affirmed by the United States Court of Appeals for the Ninth Circuit on March 12, 2001.

II.

ANALYSIS³

Colvin argues all of the following: Colvin did not discharge nonhazardous solid waste ("waste"), as pollutants, into the Salton Sea,⁴ the Salton Sea is not a "navigable water" under the CWA, Lady Lu is not a "wetland" under the CWA, and a bulldozer is not a "point source" under the CWA. The gist of Colvin's arguments is that there is no federal jurisdiction over the Salton Sea under the CWA, and, therefore, the CWA does not prohibit the conduct for which he was convicted. The government also responds to an issue not raised by Colvin, namely that the jury's lack of specificity regarding the basis for its finding that the Salton Sea constitutes a "water of the United States" does not provide a basis for granting Colvin's Motion.

A. Legal Standard Governing Section 2255 Petitions

Colvin's claims are asserted for the first time on collateral review. "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either `cause' and actual `prejudice,' Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2643-44, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977), or that he is `actually innocent,' Murray, 477 U.S. at 496, 106 S.Ct. at 2649-50; Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667-68, 91 L.Ed.2d 434 (1986)." Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998).

Colvin does not state explicitly whether his Motion is based on "cause and prejudice" or "actual innocence," but his arguments-that the CWA does not prohibit his actions-attempt to establish actual innocence. "To establish actual innocence, petitioner must demonstrate that, `in light of all the evidence,' `it is more likely than not that no reasonable juror would have convicted him.'" Id. at 623, 118 S.Ct. at 1611 (quoting Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 867-68, 130 L.Ed.2d 808 (1995)). Actual innocence entails more than "legal insufficiency;" it requires "factual innocence." Id. (citing Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992)). Moreover, the claim of actual innocence must be based solely on reliable evidence not presented at trial. See Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 1503, 140 L.Ed.2d 728 (1998) (commenting that "[g]iven the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected") (internal quotation omitted).

B. CWA Prohibits Colvin's Conduct

The evidence not presented at trial that Colvin submits in support of his Motion is a Supreme Court decision, Solid Waste Agency of Northern Cook County v. Army Corps of Eng'r, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) ("SWANCC"), that was decided after he was convicted. According to Colvin, SWANCC invalidates the basis for his conviction.

1. SWANCC

A brief review of CWA jurisprudence is necessary in order to understand the import of SWANCC and its effect on Colvin's underlying conviction. The CWA, also known as the Federal Water Pollution Control Act, 86 Stat. 816, as amended, 33 U.S.C. § 1251 et seq., prohibits the unpermitted discharge of a pollutant from a point source into a water of the United States.

The United States Army Corps of Engineers ("Corps"), to which Congress has delegated the responsibility of "protecting the quality of our Nation's waters" by, inter alia, promulgating regulations under the CWA, see SWANCC, 531 U.S. at 175-76, 121 S.Ct. at 684-85 (Stevens, J., dissenting), has accorded various interpretations to "water of the United States," or "navigable waters." See, e.g., id. at 163, 121 S.Ct. at 678; United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123-24, 106 S.Ct. 455, 455-56, 88 L.Ed.2d 419 (1985). "Navigable waters" has included, inter alia, "waters such as intrastate lakes, rivers, streams ... mudflats, sandflats ... playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce ...." 33 C.F.R. § 328.3(a)(3) (1999). In 1986, the Corps enacted the "Migratory Bird Rule." See SWANCC, 531 U.S. at 164, 121 S.Ct. at 678. Attempting to "clarify the reach of its jurisdiction, the Corps stated that [Section 404(a) of the CWA] extends to intrastate waters [w]hich are or would be used as habitat by birds protected by Migratory Bird Treaties; or [w]hich are or would be used as habitat by other migratory birds which cross state lines; or [w]hich are or would be used as habitat for endangered species ...." Id. (citing 51 Fed.Reg. 41217).

The SWANCC Court reviewed the authority of the Corps to promulgate the Migratory Bird Rule. See id. It held that the Corps' construing the term "navigable waters" to include isolated, non-navigable intrastate waters used as a habitat by migratory birds as an independent basis to assert jurisdiction under the CWA exceeded the authority granted to it under the CWA. See id. at 174, 121 S.Ct. at 684. However, the SWANCC Court did not invalidate other Corps interpretations (i.e., non-Migratory Bird Rule interpretations) of navigable waters, including all traditional navigable waters, all interstate waters, all tributaries to navigable or interstate waters, all wetlands adjacent to any and all of such waters, and all waters that are subject to the ebb and flow of the tide.⁵ See, e.g., Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 533 (9th Cir. 2001) (post-SWANCC decision stating that SWANCC merely invalidated the Corps' Migratory Bird Rule, and did not call into question federal jurisdiction over waters that are "navigable-in-fact" or open waters that flow into interstate waters); Idaho Rural Council v. Bosma, 143 F.Supp.2d 1169, 1178 (D.Idaho 2001) (post-SWANCC decision commenting that "[t]he Ninth Circuit defines waters of the United States broadly" and that, even after SWANCC, "waters of the United States include at least some waters that are not navigable in the classical sense, such as non-navigable tributaries and streams"); United States v. Buday, 138 F.Supp.2d 1282, 1288 (D.Mont. 2001) (post-SWANCC decision that assumes that federal courts still have jurisdiction over traditional navigable waters, interstate waters, and navigable-in-fact waters). See generally SWANCC, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576.

2. Salton Sea⁶

The trial record reflects that the Salton Sea is a popular destination for out-of-state and foreign tourists, who fish and recreate in and on its waters and shoreline. Some tourists visit the Salton Sea for medicinal purposes, believing its water is good for their skin. Other international and domestic visitors frequent the Salton Sea to water ski, fish, hunt ducks, and race boats and jet skis on the Sea. Many Canadian tourists frequent the Sea in the winter, while many others use it in the summer. The record further...