U.S. v. Tush

• Decision Date: 02 February 2001
• Docket Number: No. 99-20012-01-KHV.,99-20012-01-KHV.
• Citation: 151 F.Supp.2d 1246
• Parties: UNITED STATES of America, Plaintiff, v. Jeremiah C. TUSH, Defendant.
• Court: U.S. District Court — District of Kansas

151 F.Supp.2d 1246

UNITED STATES of America, Plaintiff, v. Jeremiah C. TUSH, Defendant.

No. 99-20012-01-KHV.

United States District Court, D. Kansas.

February 2, 2001.

Jeremiah C. Tush, El Reno, OK, pro se.

Leon J. Patton, Office of U.S. Atty., Kansas City, KS, for U.S.

MEMORANDUM AND ORDER

VRATIL, District Judge.

This matter comes before the Court on defendant's Petition Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. # 31) filed October 17, 2000. For reasons set forth below, defendant's motion is overruled.

Factual Background

On February 18, 1999, a grand jury returned a three-count indictment. Count 1 charged defendant with arson of real property (the Sunflower Army Ammunition Plant) owned and possessed by the United States in violation of 18 U.S.C. § 844(f)(1). Count 2 charged defendant with arson of a building (the Full Gospel Tabernacle church in DeSoto, Kansas) used in an activity affecting interstate commerce in violation of 18 U.S.C. § 844(i). Count 3 charged defendant with unlawful possession of a firearm by a convicted felon.

Defendant pled guilty to Count 2. In the plea agreement, defendant agreed that the evidence would "show that the [Full Gospel Tabernacle] church was used in an activity affecting interstate commerce, since the church hymnals and Sunday School materials which the church uses are purchased from businesses in Missouri and Tennessee, and the church has visitors who reside out of state." Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. # 26) filed April 19, 1999.

On July 19, 1999, the Court sentenced defendant to a term of imprisonment of 60 months. The Court also sustained the government's motion to dismiss Counts 1 and 3 of the indictment.

On October 17, 2000, defendant filed the instant motion pursuant to 28 U.S.C. § 2255. Defendant claims that his conviction should be vacated in light of the Supreme Court's decision in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). In particular, defendant argues that the Court did not have jurisdiction to accept his plea or sentence him because the Full Gospel Tabernacle church was not used in an activity affecting interstate commerce as required by 18 U.S.C. § 844(i).

Analysis

I. Procedural Bar

A. Statute Of Limitations

Section 2255 provides a one-year period of limitation for motions brought under that section. 28 U.S.C. § 2255. The limitation period runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

Because defendant did not file a direct appeal, his conviction was final on August 5, 1999 — ten days after judgment was entered. Accordingly, under subsection (1), defendant had until August 5, 2000 to file a motion to vacate, set aside or correct his sentence. Defendant filed his motion on October 17, 2000, over two months beyond the deadline set forth in subsection (1).

Defendant maintains that his motion is timely under subsection (2). Defendant argues that prior to the Supreme Court's ruling in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), he was under an impediment to file his motion. The Court disagrees. Any such impediment was not created by "governmental action in violation of the Constitution or laws of the United States" as required by subsection (2). 28 U.S.C. § 2255(2).

The Court finds, however, that defendant's motion is timely under subsection (3). In Jones, the Supreme Court recognized for the first time that receipt of natural gas, a mortgage or an insurance policy from out-of-state sources is insufficient to satisfy the interstate commerce requirement of section 844(i). See 120 S.Ct. at 1910. Jones emphasized that the building must be actively employed for commercial purposes, and "a passive, passing, or past connection to commerce" is insufficient. Id. Prior to Jones, several circuits had held that a passive connection between a building and interstate commerce was sufficient to support a conviction under section 844(i). See, e.g., United States v. Rea, 169 F.3d 1111, 1113-14 (8th Cir.1999) (church annex covered where it utilized Sunday School materials and natural gas purchased from out-of-state sources), vacated, 530 U.S. 1201, 120 S.Ct. 2193, 147 L.Ed.2d 230 (2000) (vacated and remanded based on Jones), reversed and remanded, 223 F.3d 741 (8th Cir.2000); United States v. Hicks, 106 F.3d 187, 189 (7th Cir.) (restaurant had fire insurance written by two out-of-state companies, obtained natural gas from out of state, and received food from out of state), cert. denied, 520 U.S. 1258, 117 S.Ct. 2425, 138 L.Ed.2d 188 (1997); United States v. Ramey, 24 F.3d 602, 607 (4th Cir.1994), cert. denied, 514 U.S. 1103, 115 S.Ct. 1838, 131 L.Ed.2d 757 (1995) (trailer's receipt of electricity from interstate power grid sufficient to satisfy jurisdictional requirement of section 844(i)), post conviction relief denied, 10 F.Supp.2d 599 (S.D.W.Va.1998), vacated, 217 F.3d 842, 2000 WL 790959 (4th Cir.2000) (vacated based on Jones); United States v. Utter, 97 F.3d 509, 516 (11th Cir.1996) (restaurant covered because it served alcohol and used natural gas, both of which originated out of state, and offered to serve interstate travelers); United States v. DiSanto, 86 F.3d 1238, 1248 (1st Cir.1996) (in dicta, noting that restaurant was used in interstate commerce because it received food supplies and natural gas from outside state), cert. denied, 520 U.S. 1105, 117 S.Ct. 1109, 137 L.Ed.2d 310 (1997). But cf. United States v. Corona, 108 F.3d 565, 570 (5th Cir.1997) (questioning whether single factor of obtaining natural gas service from out of state for use in single residential household satisfies constitutional requirement); United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir.1995) (receipt of natural gas from out-of-state sources insufficient). Accordingly, in Jones, the Supreme Court recognized a "new right" within the meaning of section 2255(3). See Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir.2000) (finding that Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) recognized new right within meaning of section 2255(3) because defendant for first time was free of criminal liability under section 924(c)(1) for conduct that had previously supported conviction in nearly every circuit).

B. Whether Defendant's Claim Is Precluded By Teague

The government argues that even if Jones announced a new rule of criminal procedure, it should not apply to cases on collateral review. Under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), only "watershed" constitutional rules of criminal procedure may be applied retroactively to cases on collateral review. Id. at 311, 109 S.Ct. 1060. A rule that qualifies under the "watershed" exception "must not only improve accuracy, but also `alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060).

Teague does not bar defendant's motion in this case. Teague applies only to new procedural rules, and "it is inapplicable to the situation in which th[e Supreme] Court decides the meaning of a criminal statute enacted by Congress." Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). A defendant may challenge the validity of a plea agreement based on a decision of the Supreme Court holding that a substantive federal criminal statute does not reach certain conduct. See id. In United States v. Ryan, 227 F.3d 1058 (8th Cir.2000), the Eighth Circuit held that Jones may be applied retroactively to cases on collateral review. Id. at 1062-63. In a similar context, the Tenth Circuit held that the Supreme Court's decision in Bailey, supra, which defined the substantive reach of 18 U.S.C. § 924(c)(1), could be applied retroactively to cases on collateral review. See United States v. Barnhardt, 93 F.3d 706, 708 (10th Cir.1996). For these reasons, Teague does not bar defendant's collateral attack on his sentence.

C. Failure To Raise Claim On Direct Appeal

The government next argues that defendant's claims are procedurally barred because he failed to raise them on direct appeal. "[Section] 2255 is not available to test the legality of matters which should have been raised on appeal." United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994) (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992)). "Nevertheless, a statutory requirement that an activity be `in or affecting interstate commerce' is both jurisdictional and an essential element of the charge, and challenges to jurisdiction may be raised for the first time on collateral review." United States v. Swapp, 198 F.3d 260, 1999 WL 989336, at *2 n. 1 (10th Cir. Oct.29, 1999) (citations omitted); see United States v. Kunzman, 125 F.3d 1363, 1364-65 (10th Cir.1997) (treating challenge to interstate commerce element of statute as jurisdictional, thus not procedurally barred), cert. denied, 523 U.S. 1053, 118 S.Ct. 1375, 140 L.Ed.2d 523 (1998); United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993) ("jurisdictional issues are never waived and can be raised on collateral attack."). Defendant therefore may challenge the validity of his plea...