U.S. v. Prevatte

• Decision Date: 08 August 2002
• Docket Number: No. 94-3360.,94-3360.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Russell PREVATTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

300 F.3d 792

UNITED STATES of America, Plaintiff-Appellee, v. Russell PREVATTE, Defendant-Appellant.

No. 94-3360.

United States Court of Appeals, Seventh Circuit.

Submitted December 27, 2001.

Decided August 8, 2002.

COPYRIGHT MATERIAL OMITTED

Donald J. Schmid (submitted), Office of the U.S. Attorney, South Bend IN, Andrew B. Baker, Jr., Office of the U.S. Attorney, Hammond, IN, for plaintiff-appellee.

Alexander M. Salerno (submitted), Berwyn, IL, Russell "Rusty" Prevatte, Florence, CO, pro se, for defendant-appellant

Before CUDAHY, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Russell "Rusty" Prevatte brings this motion to recall mandate and seeks immediate release from incarceration. For the following reasons, we believe that this motion ought to be construed as a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and transferred to the District of Colorado pursuant to 28 U.S.C. § 1631.

I BACKGROUND

The facts leading up to Mr. Prevatte's conviction are reported in detail in two prior opinions, see United States v. Prevatte, 16 F.3d 767 (7th Cir.1994), and United States v. Prevatte, 66 F.3d 840 (7th Cir.1995). We therefore shall set forth only those facts that are pertinent to Mr. Prevatte's current motion.

On December 23, 1991, Mr. Prevatte and some confederates detonated a pipe bomb in an alley in Hammond, Indiana. The bomb damaged the adjacent house and garage; specifically, it punctured a gas meter located on the home. It appears, but is not clear from the record, that the bomb also damaged a pole owned or maintained by the Northern Indiana Public Service Company, the provider of natural gas to the adjacent house. The shrapnel from the explosion caused the death of Emily Antkowicz who was in her yard next to the alley when the bomb exploded.

Mr. Prevatte and his confederates were apprehended several months later. Mr Prevatte was charged with "maliciously damag[ing] or destroy[ing] ... 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 ...." 18 U.S.C. § 844(i). Specifically, in Count II of a twenty-four count indictment, the grand jury charged that Mr. Prevatte "did maliciously damage and destroy, or attempt to damage and destroy, by means of an explosive, to wit: a pipe bomb, a building or other real and personal property located at 1425 Stanton, Hammond, Indiana which was used in or affected interstate commerce, which resulted in the death of Emily Antkowicz; [a]ll in violation of Title 18, United States Code, Section 844(i) and Title 18, United States Code, Section 2." R.1 at 7.

At trial, the Government established the interstate link by submitting evidence that the bombing not only had damaged a gas meter at 1425 Stanton, but also that the damage had caused a leak of gas that had traveled through interstate pipelines. See Prevatte, 16 F.3d at 771 n. 3 (citing Tr. VI at 813 and Tr. VII at 1228). The jury returned a verdict against Mr. Prevatte on Count II of the indictment, and the district court sentenced him to life imprisonment.

Mr. Prevatte appealed his conviction and his sentence. However, he did not raise lack of an interstate nexus as a basis for error. Nevertheless, this court sua sponte raised and resolved the issue; it stated:

No claim is made on appeal that this bombing was without the interstate commerce nexus required under 18 U.S.C. § 844(i). However, in United States v. Stillwell, 900 F.2d 1104, 1110 n. 2 (7th Cir.), cert. denied, 498 U.S. 838, 111 S.Ct. 111, 112 L.Ed.2d 81 (1990), this court held that the adequacy of the interstate commerce nexus was jurisdictional. This court also held in Stillwell that the bombing of a private home supplied by natural gas from outside the state had a sufficient nexus to interstate commerce under § 844(i). Id. at 1107 (stating that "Congress intended § 844(i) to reach a private residence which is supplied with interstate natural gas"). We are constrained to follow Stillwell as the law of this circuit. There was evidence of record that the bombings had caused damage to gas meters and had caused leaks of gas that had traveled through interstate pipelines.

Id. (parallel and record citations omitted). Mr. Prevatte's conviction was affirmed, but this court remanded for resentencing. See United States v. Prevatte, 16 F.3d 767 (7th Cir.1994). After a subsequent appeal and remand, see United States v. Prevatte, 66 F.3d 840 (7th Cir.1995), Mr. Prevatte eventually was sentenced to 44 years' imprisonment.

In 1997, Mr. Prevatte sought post-conviction relief under 28 U.S.C. § 2255. Specifically, Mr. Prevatte argued that the Government had withheld favorable evidence from him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and had violated his due process rights by pressuring his brother to provide false testimony against him. The district court denied the motion, and Mr. Prevatte did not appeal.

In November 1999, while incarcerated at a federal detention center in California, Mr. Prevatte filed a motion for habeas relief pursuant to 28 U.S.C. § 2241. In his motion, Mr. Prevatte challenged his conviction on the basis that the Government had not established a sufficient interstate nexus. The United States District Court for the Central District of California, however, dismissed Mr. Prevatte's motion for lack of subject matter jurisdiction. The court noted that Mr. Prevatte did not challenge the "manner, location or conditions[] of the execution of a sentence," but instead contested the legality of his conviction and sentence; consequently, his motion must be brought with the sentencing court under 28 U.S.C. § 2255. Motion to Recall Mandate, Ex.4 at 2-3. The court further quoted § 2255 for the proposition that a petitioner may not seek relief under § 2241 "`if it appears the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.'" Id. at 3 (quoting 28 U.S.C. § 2255). According to that court, "[t]he petitioner has not shown that a remedy pursuant to § 2255 is inadequate or ineffective to test the legality of his detention. Thus, the court must dismiss the present petition for lack of subject matter jurisdiction." Id.

The Ninth Circuit affirmed the dismissal, but on different grounds. It stated:

The challenged conviction and sentence at issue here were imposed by the Northern District of Indiana. At the time Prevatte filed his section 2241 petition, however, he was incarcerated in the Central District of California. Moreover, before the district court ruled on his petition, Prevatte was then transferred to a federal prison in Florence, Colorado, where he is currently incarcerated. Because Prevatte's § 2241 petition effectively challenges the legality of his underlying conviction and invokes the savings clause under section 2255, the district court properly recognized that it was without jurisdiction.

Defendant's Three Supp. Exhibits, Ex.2 at 2. The Ninth Circuit then remanded "for the limited purpose of determining if the interests of justice require transfer of Prevatte's section 2241 claim, challenging his conviction and sentence under 18 U.S.C. § 844(i), to the district court in Colorado." Id. at 3. On July 23, 2002, the Central District of California denied transfer and dismissed Mr. Prevatte's § 2241 motion.

On December 27, 2001, Mr. Prevatte filed a document with this court entitled "Appellant Prevatte's Motion to Recall Mandate Pursuant to Court's Inherent Power to Prevent A Manifest Miscarriage of Justice." In his motion, Mr. Prevatte asks this court to recall its mandates, the last of which was issued in October 1995 after his second appeal. Mr. Prevatte submits that Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), renders him actually innocent of the crime for which he was convicted. Mr. Prevatte maintains that, because the only interstate connection established at his trial was the injury to a home that received interstate natural gas, and because Jones held that a private residence that received interstate natural gas was not "used" in commerce for purposes of 18 U.S.C. § 844(i), he should be "set at liberty and discharged from custody." Motion to Recall Mandate at 2.

II DISCUSSION

A. Entitlement to Relief Under 28 U.S.C. § 2255

1.

Mr. Prevatte submits that this court has the inherent authority to recall its mandate to prevent a miscarriage of justice. However, we previously have determined that motions, such as the one presented by Mr. Prevatte, cannot be employed to evade the successive petition restrictions of 28 U.S.C. § 2255. See Gray-Bey v. United States, 209 F.3d 986, 988 (7th Cir.2000). In Gray-Bey, the petitioner had sought and was denied habeas relief under § 2255. Gray-Bey then sought relief in the district of his incarceration by way of 28 U.S.C. § 2241. The district court, however, characterized Gray-Bey's motion as an attempt to circumvent the successive filing rules of § 2255 and transferred the case to this court for disposition. While the matter was pending, Gray-Bey's counsel filed a motion to recall the mandate of the first disposition of Gray-Bey's habeas appeal. "By recalling the mandate in the prior case, counsel contended, we could address the merits of Gray-Bey's ... argument without regard to § 2244(b) and 2255 ¶ 8." Id. at 988. This court rejected the argument. Quoting the Supreme Court's decision in Calderon v. Thompson, 523 U.S. 538, 553, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), this court stated:

"[A] prisoner's motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of § 2244(b). Otherwise, ...