U.S. v. Davies, 03-1933.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation394 F.3d 182
Docket NumberNo. 03-1933.,03-1933.
PartiesUNITED STATES of America v. Todd R. DAVIES, Appellant.
Decision Date13 January 2005

Lisa B. Freeland (Argued), Office of Federal Public Defender, Pittsburgh, PA, for Appellant.

Mary Beth Buchanan, Bonnie R. Schlueter, Kelly R. Labby, Paul M. Thompson (Argued), Office of the United States Attorney, Pittsburgh, PA, for Appellee.

Before AMBRO, ALDISERT and STAPLETON, Circuit Judges.


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 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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851, 130 L.Ed.2d 808 (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.


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 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 18 U.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 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.


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. 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.

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.


The District Court first addressed these three grounds for 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.2002).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 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, 120 S.Ct. 1904, 146 L.Ed.2d 902 (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 constitutional standard of competence. This leaves unresolved only Davies's first claim for relief.


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).


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, 541 U.S. 386, 124 S.Ct. 1847, 1852, ___ L.Ed.2d ___ (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, 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,...

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