Lead Opinion
ROGERS, J., delivered the opinion of the court, in which SILER, J., joined.
CLAY, J. (pp. 510-13), delivered a separate concurring opinion.
OPINION
Petitioner, sentenced under the federal arson statute provision for a higher maximum penalty “when death results,” argues in this collateral attack upon his sentence that the jury, not the district judge, should have determined the fact that deaths resulted from the fire that he set. Jones v. United States,
I.
Logan’s employer and co-defendant Sur-esh Kumar sought to collect the proceeds of an insurance policy on his failing hotel in Bowling Green, Kentucky. To this end, Kumar asked Logan, his maintenance man, to set fire to the hotel in consideration for $3500 and a free рlace to live for one year. In 1996, Logan set fire to the
During pretrial proceedings for Kumar and Logan’s joint trial, Kumar argued that the deaths in the hotel fire were irrelevant to the arson offense to be considered by the jury and thus that evidence of the deaths was barred by Federal Rules of Evidence 401 and 402. The district court noted the split of authority аs to whether the issue of death was an element of the aggravated arson offense or a mere sentencing enhancement. The court determined that death was not an element and noted that because “the defendant argues that the death certificates are not relevant, defendant Kumar agrees with the government’s position [that death was not an element of the offense].” The court therefore granted Kumar’s motion to keep evidence оf the deaths from the jury. Logan brought a motion to exclude a 911 telephone transcript because he argued that testimony regarding the victims did not make it any more or less probable that he set the fire. In the same order granting Kumar’s motion, the district court granted Logan’s motion on the grounds that the 911 evidence was not probative.
After a joint trial with co-defendant Ku-mar, the jury on February 28, 1997, found Logan guilty of (1) conspiracy to commit mail fraud and arson in violation of 18 U.S.C. §§ 371, 844(i), and 1341; and (2) arson оf real property used in or affecting interstate commerce in violation of 18 U.S.C. § 844(i). The jury did not decide whether any death or serious bodily injury resulted from the arson. The jury acquitted Logan of mail-fraud.
Logan challenged the Presentencing Report on ten grounds. Logan argues for purposes of his § 2255 motion that three of his ten objections demonstrate that he raised the issue of whether the jury or the judge had the authority to decide whether the deaths occurred. First, Logan argued thаt he was entitled to a downward departure because he lacked the necessary culpable mental state to kill when he set the hotel on fire. Second, he argued that the court failed to give sufficient consideration to the evaluations submitted by defense experts that indicated Logan was mentally impaired. Third, Logan argued that the government’s summary of the evidence, relied upon by the trial court, did “not accurately reflect the defense level of сulpability for sentencing purposes.”
Pursuant to 18 U.S.C. § 844(i), the district court on July 7, 1997, sentenced Logan to life imprisonment for the arson charges because the arson caused the death of four people. On March 24, 1999, the Supreme Court decided Jones v. United States,
Logan filed a motion for collateral relief pursuant to 28 U.S.C. § 2255 on January 16, 2001. The magistrate recommended that Jones applied to-Logan’s case because Jones was decided before Logan’s case became final. The magistrate also held that Jones announced a new rule of constitutional law. The magistrate nevertheless
The district court did not adopt the magistrate’s report in full because the court held that Jones did not announce a new rule of constitutional law. Instead, the court held that, because Jones merely provided statutory interpretation limited to the federal carjacking statute and did not provide a constitutional rule of criminal procedure, Logan could not rely on Jones in his § 2255 motion. The district court accordingly dismissed Logan’s motion.
On November 24, 2004, this court, construing Logan’s appeal of the district court’s ruling as an application for a certificate of appealability, permitted him to appeal whether Jones applied to his case and, if so, whether he proeedurally defaulted his Jones claim. We first conclude, contrary to the district court’s determination, that Logan can rely on Jones because Jones’ holding regarding the elements of the federal carjacking statute is pertinent to the correct interpretation of the federal arson statute. However, we affirm the judgment of the district court to dismiss Logan’s motion because, by failing to argue (at both trial and on direct appeal) the nonconstitutional, nonjurisdictional issue that Jones resolved, Logan proeedurally defaulted his Jones claim.
II.
The nonconstitutiоnal nature of the Supreme Court’s holding in Jones v. United States does not preclude Logan from relying on that case in his § 2255 motion. Section 2255 extends to relief based on “laws of the United States.”
Jones announced a new rule of statutory law, not a new rule of constitutional law. The petitioner in Jones successfully argued that the jury had to decide, as an element of the offense, whether anyone died in connection with his carjacking. The Court held that, because allowing the judge to determine the fact of whether anyone died as a sentencing factor would “raise serious constitutional questions,” Congress presumptively intended the issue of death to be an element of the statutory offense. Jones,
The statutory nature of Jones’ holding does not by itself mean that Logan
Moreover, Jones applies to a conviction under the federal arson statute even though Jones was decided under the federal carjacking statute. Both statutes, with similar phrasing and lаnguage, describe the substantive crime and then provide different penalties if bodily injury or death occurs during the commission of the crime. Compare 18 U.S.C. § 844(i), with 18 U.S.C. § 2119. Indeed, the government concedes that “a Jones analysis of 18 U.S.C. § 844(i) would almost certainly have resulted in a conclusion that the ‘if death results’ finding was an element to be proved to the jury.” In light of the similarity between the statutes’ language and the government’s concession, Logan can properly rely on Jones in his § 2255 motion.
III.
Although not precluded from relying upon Jones because of the statutory basis for the Jones holding, Logan procedurally defaulted his claim by failing to raise the Jones issue at trial or on apрeal. Logan never raised the issue despite the district court’s recognition that the issue was unsettled at the time of Logan’s trial and despite the fact that the Supreme Court decided Jones before Logan’s oral argument to this court on direct appeal. Moreover, even if this court were to hold that Logan did not have the opportunity to raise the issue, Logan still cannot rely on Jones because the district court’s error did not cause a “fundamental defect” or a “misсarriage of justice.”
Statutory claims brought under § 2255 are proper only when the issues presented in the motion were raised on direct appeal or, if the issue could not be raised, when a miscarriage of justice arises. The Supreme Court held in Sunal v. Large that a petitioner could not raise a statutory claim for the first time on collateral attack where the resolution of the relevant legal issue “at the time of the conviction[ ] ... had not crystallized.”
Contrary to Logan’s assertions, Logan’s objections to the Presentencing Report failed to raise the issue of whether the deaths were elements of the statutory offense. His first objection concerned
Logan failed to raise the Jones issue at trial despite his knowledge that the issue was unsettled. The issue of whether death was an element of the offense or a mere sentencing factor was unsettled at the time of his 1996-97 trial. Compare United States v. Triplett,
Logan also failed to raise the Jones issue on direct appeal once Jones was decided. Because the Supreme Court decided Jones before Logan’s oral argument on direct appeal in this court (and thus before Logan’s case became final), Logan certainly could have relied upon Jones in his appeal to this court and on certiorari to the Supreme Court. See Griffith v. Kentucky,
IV.
Even if this court determined that Logan could not have reasonably contested the issue at trial or on appeal, he still cannot rely on Jones because the district court’s incorrect interpretation of the statute at trial did not result in a “fundamental defect which inherently results in a complete miscarriage of justice.” Davis,
Logan’s claim does not present a “fundamental defect” because he is not convicted of an act that the law does not make
Even assuming there was a “fundamental defect,” no miscarriage of justice or other extraordinary factor in this case allows Logan to rely in his motiоn on the change in statutory interpretation. In Logan’s case, no party questioned, according to the magistrate, that deaths resulted from the fire. See Derman v. United States,
y.
For the foregoing reasons, we AFFIRM the district court’s denial of Logan’s § 2255 motion.
Notes
. Logan also appeal's unable to state a successful claim for ineffective assistance of counsel. Counsel pursued a trial tactic of keeping all evidence of the deaths from the jury. The Court in Strickland v. Washington,
Concurrence Opinion
concurring.
I concur in the decision to affirm the district court’s denial of habeas relief to Petitioner, but I write separately because my rationale differs from that of the majority. In my view, Petitioner may not rely on Jones to support his petition for habeas relief. The decision in Jones did not announce a new rule of criminal procedure with general application; but rather, the decision was one only of statutory construction of the federal carjacking statute.
When a federal prisoner makes a § 2255 habeas claim, he alleges that his sentence was illegal, in that it violated the United States Constitution or federal law. See 28 U.S.C. § 2255. The question is then what exactly Jones made illegal. The answer to this question is straightforward; Jones made it illegal for a court to convict and sentence an individual for federal carjacking when serious bodily injury resulted, or for federal carjacking when death resulted, if the issue of whether serious bodily injury resulted, or whether death resulted,
As the majority recognizes, the Supreme Court’s holding in Jones referred only to the federal carjacking statute. The issue addressed by the Court in Jones was “whether the federal carjacking statute, 18 U.S.C. § 2119, ... defined three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exemрt from the requirements of charge and jury verdict.” Jones v. United States,
In fact, the Supreme Court explicitly stated that the holding was one only of the statutory construction of § 2119. The dissent reasoned that the majority’s underlying princiрle would “east[ ] doubt on sentencing practices and assumptions followed not only in the federal system but also in many States.” Jones,
The Supreme Court responded to this concern by stating “our decision today does not announce any new principle of constitutional law, but merely interprets a particular federal statute in light of a set of constitutional concerns that have emerged through a series of our decisions over the past quarter century.” Id. at 252 n. 11,
This Court has specifically held that Jones is inapplicable to cases that involve stаtutes other than the federal carjacking statute. In United States v. Lucas, this Court recognized that:
Jones’s explicit holding was based on statutory construction.... The [Supreme] Court’s statement that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment,any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt,” ... was dictum in light of its resolution of the case on the basis of statutory construction.
Despite the unambiguous language of both the Supreme Court and this Court, the majority endeavors to contort the holding of Jones to apply to the federal arson statute, so that Petitioner may rely on Jones in his habeas petition. While seemingly accepting the limiting language in Jones and this Court’s interpretation of that language in Lucas, the majority finds that
[t]he statutory nature of Jones’ holding does not by itself mean that Logan could not rely upon Jones on collateral attack. Petitioners bringing motions under § 2255 can rely on the Court’s decisions grounded in statutory law. Indeed, in Davis v. United States, . . . the Supreme Court held that “the fact that a contention is grounded not in the Constitution, but in the ‘laws of the United States’ would not preclude its assertion in a § 2255 proceeding.”
It is certainly true that in a § 2255 habeas petition, a petitioner can attack his sentence based on either constitutional or federal statutоry grounds. Section 2255 of Title 28 of the United States Code states, “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.” The question is then what statute Petitioner points to that would warrant habeas relief. Certainly the majority does not suggest that Petitioner may rely on the federal carjacking statute itself for the proposition that whether death results under the federal arson statute is a jury issue. Nothing in the text of the statute would support such an argument. See 18 U.S.C. § 2119.
Perhaps the majority’s argument is that Petitioner can rely on the statutory construction of the federal carjacking statute in Jones to make an argument as to why the federal arson statute should have been construed in the same manner in his case; if this is the point, however, Petitioner is not relying on federal statutory law at all. He is relying on the Supreme Court’s interpretation of the federal carjacking statute based on constitutional grounds to show that the federal arson statute should be construed based on those same constitutional grounds. Petitioner challenges his sentence as unconstitutional, not in violation of federal statutory law, because “when death occurs” was a fact found by the judge and not the jury.
The question then becomes whether Jones in fact converted Petitioner’s federal arson sentence from constitutional to unconstitutional in nature. The language in Jones previously 'cited demonstrates beyond argument that the answer is no. I agree with the majority that the relevant language in § 844(i) and § 2119 is similar; however, Jones did not require courts that
This is not to say that courts after Jones but before Apprendi could not have used Jones as persuasive authority when engaging in their own construction of statutes similar to the federal carjacking statute. The point, however, is that Jones was not controlling in those instances; Jones controlled only in cases that involved the federal carjacking statute. A court’s decision to ignore Jones in another statutory context would not have been unconstitutional, in violation of federal law, or otherwise illegal; this Court’s Lucas decision exemplifies this point. Simply put, a pre-Ap-prendi court may have been able to use Jones in construing another statute, but it was not required to do so. As a result, Petitioner fails to show how his sentence was illegal, and he is therefore not entitled to § 2255 habeas relief.