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, *511was not charged in the indictment and found by the jury to have been proved beyond a reasonable doubt. See Jones v. United States, 526 U.S. 227, 251-52, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Jones did not make it illegal for a court to convict and sentence an individual for federal arson when death resulted when the issue of whether death resulted was determined by the judge by a preponderance of the evidence; only in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), would the Supreme Court later make such a sentence illegal by announcing the constitutional rule that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. The majority, by finding that Jones made Petitioner’s sentence illegal, bestows a constitutional importance to Jones that the Supreme Court reserved for Apprendi.
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 exempt from the requirements of charge and jury verdict.” Jones v. United States, 526 U.S. 227, 229, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). The Court held that “[a]ny doubt on the issue of statutory construction is hence to be resolved in favor of avoiding [constitutional] questions. This is done by construing §2119 as establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonably doubt, and submitted to a jury for its verdict.” Id. at 251-52, 119 S.Ct. 1215 (emphasis supplied).
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 principle would “east[ ] doubt on sentencing practices and assumptions followed not only in the federal system but also in many States.” Jones, 526 U.S. at 254, 119 S.Ct. 1215 (Kennedy, J., dissenting). Because many federal and state criminal statutes used both elements and sentencing considerations, the dissent’s view was that the constitutionality of these statutes would be called into question by the Jones decision, as federal and state courts would be left with the daunting task of separating what was truly an element of a crime from mere sentencing factors for each of these statutes.
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, 119 S.Ct. 1215 (emphasis supplied). In response to the dissent’s fear that Jones would extend to other federal and state criminal statutes, the Court unequivocally cabined its constitutional analysis to the federal carjacking statute.
This Court has specifically held that Jones is inapplicable to cases that involve statutes 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, *512any 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.
282 F.3d 414, 420 (6th Cir.2002), overruled on other grounds by United States v. Leachman, 309 F.3d 377 (6th Cir.2002) (internal citations omitted) (emphasis supplied). In that case, this Court refused to extend the holding of Jones to 21 U.S.C. § 841, a federal narcotics statute. Id. This Court found that the defendant could not rely on Jones to attack the legality of his federal narcotics sentence, as Jones dealt only with the federal carjacking statute. Id. In short, the Lucas decision is a clear example where this Court has refused to extend Jones to other statutes.
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 statutory 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 *513made decisions between the filing dates of Jones and Apprendi to apply the Jones analysis to statutes similar to § 2119, especially since the Supreme Court went to great lengths to explain that the analysis in Jones applied only to § 2119. If the Supreme Court intended the Jones analysis to apply to statutes similar to § 2119, it would have said as much.
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.