IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 99-40150
________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
-vs-
GETZELL JOHNSON MURRELL, JR.,
Defendant-Appellant,
____________________________________________
Appeal from the United States District Court
Eastern District of Texas
(6:92cr75(01))
____________________________________________
June 23, 2000
Before WIENER and STEWART, Circuit Judges, and LITTLE, District
Judge.*
LITTLE, District Judge:**
Appellant challenges the legitimacy of his conviction by way
of 28 U.S.C. § 2255. Because his claim is procedurally barred, we
AFFIRM the district court’s denial of habeas relief.
*
District Judge of the Western District of Louisiana, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
FACTUAL AND PROCEDURAL BACKGROUND
Murrell’s post conviction complaints have been entertained by
this Court on two separate occasions and denied in two separate
unpublished opinions. See United States v. Murrell, No. 93-05008
(5th Cir. 11 Feb. 1994), cert. denied, 513 U.S. 830 (1994); United
States v. Murrell, No. 94-41185 (5th Cir. 20 Apr. 1995). We need
not revisit in detail the admittedly heinous activities conducted
by appellant in the fall of 1992. Bobbing in the wake of his
outrage are injury, death, and destruction. Our attention is
limited to the sole issue authorized by the Certificate of
Appealability emanating from this Court.
In March of 1993, appellant entered a guilty plea to two
counts of arson, both in violation of 18 U.S.C. § 844(I). We
confine our scrutiny to the guilty plea entered as to one of the
arson counts.
The grandparents of Murrell's former spouse occupied a home in
or near the rural town of Mountalba, Texas. Murrell fired a flare
into the dwelling, which incendiary act produced not only property
damage but also the death of one of the inhabitants.
Subsequent to the acceptance of his guilty plea on the arson
count, Murrell was sentenced to ten years for this offense.
Murrell appealed. The appeal was denied by this court on 11
February 1994. The details of the appeal are not noteworthy. What
is relevant and material to our consideration today is the absence
2
in that appeal of any challenge to the constitutionality of 18
U.S.C. § 844(i) as applied to the appellant. In the instant case,
Murrell suggests that the arson statute is bottomed on Congress'
authority to regulate commerce under the Commerce Clause. See 18
U.S.C. § 844(i) (indicating that destroyed property must be “used
in interstate or foreign commerce or in any activity affecting
interstate or foreign commerce”). The Mountalba, Texas home has an
imperceptible effect on interstate commerce and the firing of that
establishment is not illegal under federal law, or so the argument
states. The judgment from the district court, in response to
Murrell's § 2255 motion, recognized that the change of plea
colloquy specifically covered the interstate connection to the
activities conducted on the fired premises by the owners of the
premises. Specifically, Murrell acknowledged the extent of the
interstate commerce activity that justified application of the
arson statute.
STANDARD OF REVIEW
We review a district court's denial of a § 2255 motion under
two standards. The district court’s factual findings are not
disregarded unless they are clearly erroneous. See United States
v. Rivas, 85 F.3d 193, 194 (5th Cir.), cert. denied, 519 U.S. 1033
3
(1996). We review the district court's conclusions of law de novo.
See United States v. Faubion, 19 F.3d 226, 228 (5th Cir.1994).
DISCUSSION
“Habeas review is an extraordinary remedy and will not be
allowed to do service for an appeal.” Bousley v. United States,
523 U.S. 614, 621 (1998) (internal quotation marks omitted).
Appellant did not present the instant claim on direct appeal.
“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’ or that he is ‘actually innocent.’” Id., 523 U.S. at
622 (citations omitted); see also United States v. Jones, 172 F.3d
381, 384 (5th Cir. 1999). Appellant does not attempt to
demonstrate cause for his failure to raise this issue on direct
appeal. Appellant does however contend that “the constitutional
error in his plea colloquy ‘has probably resulted in the conviction
of one who is actually innocent.’” Bousley, 523 U.S. at 623
(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).1
1
Appellant argues that the government failed to object to magistrate’s
findings in this regard so the government is proscribed from doing so before this
court. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415 (5th Cir.
1996) (holding that party may not attack on appellate review unobjected-to
factual findings and legal conclusions made by the magistrate except on grounds
of plain error). This contention is unavailing. The magistrate and the district
court judge did not evaluate the government’s procedural default arguments. In
her report and recommendation, the magistrate paused only to “not[e] that Section
2255 is not a substitute for an appeal. ... [A] movant may not raise
constitutional or jurisdictional issues for the first time on collateral review
without establishing both cause for his procedural default and actual prejudice
resulting from the error.” REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE,
4
“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.” Bousley, 523 U.S.
at 623 (internal quotation marks omitted) (quoting Schlup v. Delo,
513 U.S. 298, 327-28 (1995)); see also United States v. Sanders,
157 F.3d 302, 305 (5th Cir. 1998). Appellant was convicted under
18 U.S.C. § 844(i) which provides in pertinent part:
Whoever maliciously damages or destroys, or attempts to
damage or destroy 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 shall be
imprisoned for not less than 5 years and not more than 20
years, fined under this title, or both ....
18 U.S.C. § 844(i) (emphasis added). Appellant argues that he is
actually innocent of this offense because the home he burned down
lacked the nexus with interstate commerce required by 18 U.S.C. §
844(i). At the change of plea hearing on March 30, 1993, appellant
acknowledged the following to be an accurate recital of the
circumstances surrounding his crime:
This residence was a rural residence there in Anderson
County, and the several people that lived there -- It was
used as sort of a family farm. They had chickens and
guinea hens and that sort of thing and supported
themselves in part from the sale of those farm animals,
and they bought supplies from a local store down the road
for this business from a local store that obtained those
No. 6:97cv382, at *5 (E.D.Tx Oct. 27, 1998). This is the sum total of the
magistrate’s review of the government’s procedural default argument. In deciding
for the government on the merits, the magistrate simply made no factual findings
or legal conclusions on the procedural issue to which the government could
object.
5
supplies from other state sources, things like PVC pipe
and animal feed, so that’s the interstate nexus on Count
8.
Appellant does not challenge the accuracy of these statements.
Instead, appellant argues that “sort of a family farm” does not
rise to the level of proof demanded by United States v. Lopez, 514
U.S. 549 (1995); he is therefore actually innocent. He argues that
the government was required to show that the residence he burned
had a substantial effect on interstate commerce.
This court has not required proof of substantial effect on
interstate commerce by each piece of destroyed property. See
United States v. Johnson, 194 F.3d 657, 660 (5th Cir. 1999) (“[The]
individual act of arson need not have a substantial impact on
interstate commerce, so long as arsons of property used in
interstate commerce or in activities affecting interstate commerce,
in the aggregate, substantially impact interstate commerce.”). But
this does not mean that no proof of the interstate commerce element
is necessary for conviction. In recently overturning the
conviction of a man that destroyed a purely private residence, the
Supreme Court required the property destroyed to have been used in
a commerce-affecting activity. “[The] qualification [’used’] is
most sensibly read to mean active employment for commercial
purposes, and not merely a passive, passing, or past connection to
commerce. Although variously defined, the word use, in legislation
as in conversation, ordinarily signifies active employment.”
6
Jones, No. 99-5739, 2000 WL 645885, *5 (May 22, 2000) (internal
quotation marks omitted). See also, Russell v. United States, 471
U.S. 858 (1985) (holding that 18 U.S.C. § 844(i) properly applied
to arson of two-unit apartment building). Appellant does not deny
that the residence he burned down was “used” in an activity
affecting commerce; he denies only that the property had a
substantial impact on interstate commerce. It may be
unconstitutional for the federal arson statute to be applied to his
offense, but the relevant inquiry in terms of actual innocence is
a statutory one, namely, did he commit the crime as described by
the statute? Appellant does not demonstrate that he did not commit
the crime; he therefore does not establish the actual innocence
necessary for this Court to entertain his constitutional claim.
For the foregoing reasons, we AFFIRM the decision of the
district court to deny habeas relief to the appellant.
7