                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-13-2005

USA v. Davies
Precedential or Non-Precedential: Precedential

Docket No. 03-1933




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                                    PRECEDENTIAL


     IN THE UNITED STATES COURT
              OF APPEALS
         FOR THE THIRD CIRCUIT


                 NO. 03-1933


       UNITED STATES OF AMERICA

                       v.

              TODD R. DAVIES,

                                  Appellant




       On Appeal From the United States
                  District Court
    For the Western District of Pennsylvania
      (D.C. Crim. Action No. 98-cr-00079)
     District Judge: Hon. Gary L. Lancaster


             Argued June 29, 2004

BEFORE: AMBRO, ALDISERT and STAPLETON,
            Circuit Judges
              (Opinion Filed January 13, 2005)




Lisa B. Freeland (Argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
 Attorney for Appellant

Mary Beth Buchanan
Bonnie R. Schlueter
Kelly R. Labby
Paul M. Thompson (Argued)
Office of the United States Attorney
700 Grant Street - Suite 400
Pittsburgh, PA 15219
 Attorneys for Appellee




                 OPINION OF THE COURT




STAPLETON, Circuit Judge:

      Todd R. Davies appeals the District Court’s denial of his
28 U.S.C. § 2255 petition. One of the claims for relief there

                              2
asserted is now acknowledged to be foreclosed by our case law.
The other two were found by the District Court to be
procedurally barred. Because the Court further concluded that
Davies could not establish cause and prejudice, or actual
innocence, to overcome that bar, the petition was denied. We
hold that Davies has demonstrated that he is “actually innocent”
of the 18 U.S.C. § 844(i) violation at issue here because, “‘in
light of all the evidence,’ [presently before us] ‘it is more likely
than not that no reasonable juror would have convicted him.’”
Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting
Schlup v. Delo, 513 U.S. 298, 327-328 (1995)). Where the
local church that Davies stood accused of burning had no more
than a passive connection to interstate commerce, no reasonable
juror could have concluded that Davies destroyed by fire a
building “used in interstate . . . commerce or in any activity
affecting interstate . . . commerce,” 18 U.S.C. § 844(i). This
showing of “actual innocence” entitled Davies to have both of
his remaining claims for relief resolved on their merits. While
the District Court correctly resolved one of those claims in the
course of determining that Davies had shown no cause and
prejudice for his procedural default, one claim remains
unresolved. Accordingly, we will reverse the judgment of the
District Court and remand for further proceedings.

                                 I.

       Davies has had a long history of mental illness, resulting
in significant part, his clinicians opine, from his involvement as
a youth with the Calvary Baptist Church in Butler, Pennsylvania.
On March 12, 1998, about ten years after he was no longer
involved with Calvary Baptist, Davies burned down the church’s

                                 3
building, which was utilized as both a place of worship and a
school.
        Davies’s clinicians suggest that he suffered years of
abuse from ages 12 to 16, when he attended school at the
church, due to “overly-strict church governance.” Given our
view of the legal issues presented, it is not necessary for us to
detail those allegations of abuse or provide a summary of
Davies’s resulting mental illness.1 Suffice it to say, Davies’s
clinicians opine that his mental illness affected his behavior on
March 12, 1998. There is no dispute, however, that Davies was
the one who burned down the church.
        On May 21, 1998, Davies was charged with violating
18U.S.C. § 844(i). The indictment read:

                On or about March 12, 1998 . . . the
        defendant . . . did maliciously damage and
        destroy, by means of fire, a building which was
        used in interstate commerce and in an activity
        affecting interstate commerce, which building
        was known as the Calvary Baptist Church . . . [i]n
        violation of Title 18, United States Code, Section
        844(i).

A163.     Davies tried unsuccessfully to have the charges


   1
    Davies insists that he is “actually innocent” of the malice
element of 18 U.S.C. § 844(i) and, accordingly, that he has
cured his procedural default. Because we conclude that he has
cured that default in a different manner, we do not reach that
issue.

                                4
dismissed. He ultimately pleaded guilty.
      At the plea hearing, the prosecutor represented that the
church was

        engaged in or affecting interstate commerce in the
        sense that moneys collected from the members of
        the church were utilized to purchase supplies,
        books and other materials outside the
        Commonwealth of Pennsylvania. In addition,
        funds were raised at the church to support
        missions both outside the Commonwealth of
        Pennsylvania and outside the United States of
        America.

A252.

       Davies’s pre-sentence report (“PSR”) concluded that he
was subject to a mandatory statutory minimum sentence of five
years. Davies requested a downward departure on three
grounds, but the District Court held that it was without authority
to depart.       Davies appealed, challenging only the
constitutionality of the five-year minimum sentence and the
District Court’s determination that it lacked authority to depart
downward. His conviction and sentence were affirmed by this
Court.
       Davies then filed a timely pro se motion to vacate his
conviction pursuant 28 U.S.C. § 2255,2 raising three issues.


  2
    28 U.S.C. § 2255 provides a one-year period in which to file
an initial motion to vacate that runs from, inter alia, “the date on

                                 5
Taken directly from the petition, they are:

              Ground One - There was not a sufficient
       factual basis for the guilty plea. At the plea
       hearing, the government did not state facts on the
       record sufficient to establish an interstate
       commerce nexus.

               Ground Two - The Court lacked
       jurisdiction to accept the plea. The government
       did not present a sufficient factual basis for the
       interstate commerce element of arson.




which the judgment of conviction becomes final.” Id. “[A]
‘judgment of conviction becomes final’ within the meaning of
§ 2255 on the later of (1) the date on which the Supreme Court
affirms the conviction and sentence on the merits or denies the
defendant’s timely filed petition for certiorari, or (2) the date on
which the defendant’s time for filing a timely petition for
certiorari review expires.” Kapral v. United States, 166 F.3d
565, 577 (3d Cir. 1999). Where, as here, “a defendant does not
file a certiorari petition,” the “judgment of conviction does not
become ‘final’ until the time for seeking certiorari review
expires. A defendant has 90 days from the date on which the
court of appeals affirms the judgment of conviction to file a
petition for a writ of certiorari.” Id. at 570-71 (citing Supreme
Court Rule 13). Davies’s motion, filed within one year plus 90
days from the date his conviction was affirmed by this Court,
was thus timely filed.

                                 6
              Ground Three - Denial of effected
       assistance of counsel. My counsel did not explain
       to me that my conduct did not actually fall within
       the definition of the crime charged.

A124-25.3

       The District Court first addressed these three grounds for


   3
    In appointed counsel’s “Amended Motion,” she presented
the same issues in the following manner:
               When Mr. Davies’ pro se petition is
       construed liberally, as it must be to do substantial
       justice, United States v. Garth, 188 F.3d 99, 108
       (3d Cir. 1999), it fairly presents the following
       legal issues:
               (1) The government did not present a
       sufficient factual basis with respect to the
       interstate commerce element to support Mr.
       Davies’ guilty plea;
               (2) The Court lacked jurisdiction to accept
       Mr. Davies’ guilty plea because the Calvary
       Baptist Church building was not used in interstate
       commerce or an activity affecting interstate
       commerce; and
               (3) Mr. Davies’ guilty plea was not
       voluntary and intelligent due to the fact that his
       counsel provided ineffective assistance during the
       plea process.
A145.

                               7
relief in its March 21, 2002, memorandum order. It concluded
that the trial court possessed jurisdiction to accept Davies’s plea
whether or not the Government presented sufficient evidence to
support a finding in its favor on the interstate commerce element
of the offense. Davies acknowledges before us, as he must, that
relief on this ground is foreclosed by United States v. Williams,
299 F.3d 250, 254 n.3 (3d Cir. 1999). 4
        With respect to Davies’s other two grounds for relief, the
District Court ruled that they were procedurally barred because
of his failure to raise them on direct appeal. As a result, the
Court concluded, they could not be addressed on their merits
unless Davies first showed “cause and prejudice” or “actual
innocence.”
        From this point on, the proceedings in the District Court
focused on whether Davies could make these showings. He
attempted to do so by insisting (1) that his counsel’s ineffective
assistance in failing to advise him correctly regarding the
evidence necessary to establish an interstate commerce nexus
and in failing to raise the absence of such evidence on appeal
constituted “cause” that resulted in prejudice to him, and (2) that
he was “actually innocent” of the offense of conviction because


     4
       In Williams, we determined that “[t]he ‘jurisdictional
element’ [of § 844(i)] is merely one element of the criminal
activity . . . and whether it is demonstrated in an individual
circumstance does not affect a court’s constitutional or statutory
power to adjudicate a case.” Williams, 299 F.3d at 254 n.3
(parenthetically quoting United States v. Carr, 271 F.3d 172,
178 (4th Cir. 2001) (internal quotation marks omitted)).


                                8
the church building was not “used in interstate . . . commerce or
in any activity affecting interstate commerce” as required by 18
U.S.C. § 844(i).
        With respect to “cause and prejudice,” the District Court
held that Davies’s counsel during the trial and on direct appeal
had not been ineffective in failing to predict the Supreme
Court’s watershed decision in Jones v. United States, 529 U.S.
848 (2000), a decision issued after the conclusion of Davies’s
appeal. After an evidentiary hearing on the “actual innocence”
issue, the Court further concluded that Davies had failed to
establish that it was “more likely than not that no reasonable
juror would have convicted him [of burning a church with the
requisite interstate nexus].” A20. Davies’s petition was
accordingly dismissed as procedurally barred.
        Because Davies’s “cause and prejudice” argument and
his “ineffective assistance of counsel” ground for relief were
essentially coterminous, this third ground for relief was
addressed and fully resolved by the District Court. However,
because of the focus of the proceedings on the procedural
default issues and the Court’s ultimate resolution of those issues
in the Government’s favor, the parties had no occasion to further
develop Davies’s basis for his first ground for relief. Similarly,
because the parties have briefed only the procedural default
issues before us, that claim has not been further developed
during the appellate process. It is clear to us only that it is
intended to constitute a claim separate from Davies’s ineffective
assistance of counsel claim.
        As noted earlier, we conclude that Davies has carried his
burden of showing actual innocence on the charge of violating
18 U.S.C. § 844(i). We agree with the District Court, however,
that the performance of Davies’s counsel was not below the

                                9
constitutional standard of competence. This leaves unresolved
only Davies’s first claim for relief.

                               II.

       We have jurisdiction to review the District Court’s denial
of Davies’s 28 U.S.C. § 2255 motion under 28 U.S.C. § 1291
and § 2253(a). See Jansen v. United States, 369 F.3d 237, 243
(3d Cir. 2004). “In a federal habeas corpus proceeding, we
exercise plenary review of the district court’s legal conclusions
and apply a clearly erroneous standard to the court’s factual
findings.” Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir.
1997).

                              III.

        The Supreme Court recently held that “a federal court
faced with allegations of actual innocence, whether of the
sentence or of the crime charged, must first address all
nondefaulted claims for comparable relief and other grounds for
cause to excuse the procedural default.” Dretke v. Haley, 124
S.Ct. 1847, 1852 (2004). Accordingly, we turn first to Davies’s
claim of ineffective assistance of counsel. Contrary to the view
taken by the District Court, we conclude that this claim was not
procedurally defaulted.
        As we have explained, one of Davies’s substantive claims
for relief was that his plea was invalid because he was deprived
of his right to effective assistance of counsel when his attorney
failed to advise him of what the Government would be required
to prove to satisfy the interstate commerce element of § 844(i).
Citing our decision in United States v. Titchell, 261 F.3d 348,

                               10
352 (3d Cir. 2001), Davies insisted before the District Court that
this kind of claim is not required to be raised on direct appeal
and, accordingly, that it was not procedurally defaulted by his
failure to do so. A373. This view is clearly sound. In Massaro
v. United States, 538 U.S. 500 (2003), the Supreme Court held
that “an ineffective-assistance-of-counsel claim may be brought
in a collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.” Id. at
504. While Davies has not called Titchell or Massaro to our
attention and may have waived this argument by failing to brief
it on appeal, we take note of it in order to maintain the
continuity of our circuit jurisprudence.5


   5
    The Supreme Court adopted in Massaro what had already
been our Court’s rule. See, e.g., United States v. DeRewal, 10
F.3d 100, 103-04 (3d Cir. 1993) (holding that a § 2255
petitioner is “not required to show ‘cause and prejudice’ with
respect to his failure to raise his ineffective assistance of counsel
claim on direct appeal,” and suggesting that a § 2255 motion is
ordinarily the proper vehicle for an ineffective assistance claim);
United States v. Jake, 281 F.3d 123, 132 n.7 (3d Cir. 2002)
(“[W]e have stated repeatedly that Sixth Amendment claims of
ineffective assistance of counsel should ordinarily be raised in
a collateral proceeding pursuant to 28 U.S.C. § 2255 rather than
on direct appeal.”); see also United States v. Nahodil, 36 F.3d
323, 326 (3d Cir. 1994) (“Nahodil’s principal claim is that his
counsel was ineffective for improperly advising him to enter a
plea of guilty despite his repeated objections to doing so. A §
2255 motion is a proper and indeed the preferred vehicle for a
federal prisoner to allege ineffective assistance of counsel.”)

                                11
        Our willingness to take note of this precedent does not
aid Davies, however. While we relieve him of the burden of
curing a procedural default, he must nevertheless demonstrate
that he has a meritorious substantive claim for relief based on
the performance of his attorney. For the same reasons that the
District Court refused to recognize Davies’s ineffective
assistance of counsel argument as a showing of cause and
prejudice, we reject it as a substantive ground of relief.
        Davies pleaded guilty on December 14, 1998. On May
22, 2000, the Supreme Court issued an opinion with respect to
the interstate commerce element of the federal arson statute, 18
U.S.C. § 844(i). As noted above, the arson statute applies only
where a defendant destroys property “used in interstate . . .
commerce or in any activity affecting interstate . . . commerce.”
Id. Noting that this language could be “susceptible of two
constructions, by one of which grave and doubtful constitutional
questions arise [in light of United States v. Lopez, 514 U.S. 549
(1995)] and by the other of which such questions are avoided,”
the Court reminded that its “duty [was] to adopt the latter.”
Jones v. United States, 529 U.S. 848, 857 (2000). The Court
thus rejected the Government’s proposed expansive construction
of § 844(i) under which any sort of de minimis connection
between interstate commerce and a building would suffice to
make its destruction a federal crime under § 844(i). Instead, the
Court adopted a construction of the interstate commerce element
of § 844(i) whereby that provision would cover “only property
currently used in commerce or in an activity affecting
commerce.” Id. at 859. Accordingly, in Jones, an owner-



(footnote omitted).

                               12
occupied residence was held not to be property used in
commerce or in an activity affecting commerce, even though it
was purchased with the proceeds of a loan from an out-of-state
lender, was covered by an insurance policy written by an out-of-
state insurer, and was serviced with out-of-state natural gas. As
we will examine in detail infra, Davies suggests that, under
Jones, the burning of a community church not used for any
commercial purpose or purpose affecting commerce falls outside
of the scope of the interstate commerce element of § 844(i).
        To demonstrate that his counsel was ineffective, Davies
“‘must [first] show that counsel’s representation fell below an
objective standard of reasonableness.’” United States v. Cross,
308 F.3d 308, 315 (3d Cir. 2002) (quoting Strickland v.
Washington, 466 U.S. 668, 687-88 (1984)). A court “deciding
an actual ineffectiveness claim must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Strickland, 466
U.S. at 690 (emphasis added).            With respect to the
reasonableness of counsel’s conduct, “[o]nly in a rare case can
an attorney’s performance be considered unreasonable under
prevailing professional standards when she does not make an
[argument] which could not be sustained on the basis of the
existing law as there is no general duty on the part of defense
counsel to anticipate changes in the law.” Gov’t of Virgin
Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). “[T]he proper
standard for [measuring minimum constitutional] attorney
performance is that of reasonably effective assistance,”
Strickland, 466 U.S. at 687, and not “exceptional” assistance,
Brown v. United States, 311 F.3d 875, 877 (8th Cir. 2002).
        Prior to Jones, a far more expansive interpretation of §
844(i)’s interstate commerce element ruled the day. Case law to

                               13
that point had required only that the Government show a de
minimis connection to interstate commerce.6 The record


   6
     See, e.g., United States v. Medeiros, 897 F.2d 13, 16 (1st
Cir. 1990) (“To establish jurisdiction under § 844(i), the
government need show only a de minimis connection to
interstate commerce.”); United States v. Grossman, 608 F.2d
534, 536 (4th Cir. 1979) (“The punishment in § 844(i) of the
unlawful use of explosives in an intrastate activity, but which
has an effect on interstate commerce although de minimis, is
within the power of Congress to enact as an appropriate means
to accomplish a legitimate end under the commerce power.”);
United States v. Shively, 927 F.2d 804, 808 (5th Cir. 1991)
(“Even a de minimis effect on interstate commerce will suffice
to support Congress’ ability to enact [§ 844(i)] under the
Commerce Clause.”); United States v. Martin, 63 F.3d 1422,
1426 (7th Cir. 1995) (“Section 844(i) applies to both businesses
and residences, and reaches arson of any property having even
a de minimis connection to interstate commerce.”) (internal
citations omitted); United States v. Rea, 169 F.3d 1111, 1113
(8th Cir. 1999) (“[T]his Court has held that section 844(i)
reaches arson of any property having even a de minimis
connection to interstate commerce.”) (internal quotation marks
omitted), abrogation recognized by United States v. Rea, 300
F.3d 952, 960 (8th Cir. 2002); United States v. Schwanke, 598
F.2d 575, 578 (10th Cir. 1979) (“Congress has the power to
punish the unlawful use of explosives under the Commerce
Clause even though the effect on interstate commerce may be de
minimis.”).
        We had not addressed whether a de minimis connection

                              14
demonstrates that Davies’s trial and appellate counsel knew that
the church building here regularly purchased supplies from out
of state–a fact that, prior to Jones, would have been sufficient to
meet the interstate comm erce element of § 844(i). See, e.g.,
Schwanke, 598 F.2d at 578 (de minimis connection to interstate
commerce existed where business in building destroyed
“purchased candy, gum and vegetables from” out of state);
United States v. Sweet, 548 F.2d 198, 200-02 (7th Cir. 1977)
(destruction of tavern had sufficient de minimis connection to
interstate commerce where tavern purchased out-of-state liquor
and beer from local distributor).
        Davies argues that his counsel had the same case law in
front of her as the lawyers who later would challenge
successfully in the Supreme Court the federal arson conviction
at issue in Jones, and that his lawyer could have mounted a
similar challenge to the interstate commerce element of §




would suffice, but instead focused upon whether the destroyed
building “was used, or intended to be used, in an activity
affecting interstate commerce,” United States v. Gaydos, 108
F.3d 505, 509 (3d Cir. 1997), the language of the interstate
commerce element found in § 844(i) that the Supreme Court
would later address in Jones. We did, however, reject in
Gaydos the argument that “Lopez . . . render[s] § 844(i)
unconstitutional,” id. at 508, which certainly would not have
encouraged Davies’s counsel to argue on direct appeal that
Lopez required, as Jones would later hold, a narrow construction
of § 844(i)’s interstate commerce element.

                               15
844(i). 7 Davies’s counsel, however, had no duty to predict that
the arguments in Jones would become the law of the land, and
did not act unreasonably in failing to advise Davies of its
teachings before his guilty plea or in failing to rely on those
teachings when pursuing Davies’s direct appeal. Finding no
ineffective assistance of counsel, we will affirm the District
Court’s denial of Davies’s motion to the extent it rested on that
ground. Additionally, there is therefore no basis for Davies’s
assertion of “cause” by way of ineffective assistance of counsel
with respect to his remaining defaulted claim. Accordingly, we
now turn to Davies’s assertion that he is actually innocent and
may thus raise his remaining defaulted claim.

                               IV.


  7
    Davies additionally notes that, during briefing for his direct
appeal, this Court decided United States v. McGuire, 178 F.3d
203 (3d Cir. 1999). In McGuire, we questioned whether, after
the Supreme Court’s decision in Lopez, a de minimis connection
to interstate commerce could suffice to bring an act within the
reach of § 844(i). We did not decide whether some greater
connection to interstate commerce would be necessary because,
we noted, the only connection in that case–a container of orange
juice that had traveled interstate–would not even meet that
minimal standard. While McGuire foreshadows that post-Lopez
a heightened connection to interstate commerce might be
necessary under § 844(i), it does not adopt such a heightened
standard and, consequently, does not alter the legal landscape on
the basis of which reasonable counsel at the time of Davies’s
appeal would have pursued an appeal.

                               16
        “To establish actual innocence, [a] 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 (quoting Schlup, 513 U.S. at 327-328
(internal quotation marks omitted)). Davies claims that he is
“actually innocent” of his 18 U.S.C. § 844(i) offense of
conviction because the church building he burned was not “used
in interstate . . . commerce or in any activity affecting interstate
. . . commerce” within the meaning of that statutory text as
interpreted by the Supreme Court in Jones v. United States.
        “New reliable evidence is almost always required to
establish actual innocence.” Sweger v. Chesney, 294 F.3d 506,
523 (3d Cir. 2002). 8 “We have held,” however, “that, in certain
circumstances, the lack of new evidence is not necessarily fatal
to an argument that a petitioner is actually innocent.” Cristin v.
Brennan, 281 F.3d 404, 420 (3d Cir. 2002). In Bousley v.


   8
     “New” evidence in this context does not necessarily mean
“newly discovered” evidence.           Two circuit courts have
concluded that Schlup allows a petitioner to offer “newly
presented” evidence (that is, evidence that was not presented to
the trier of fact) and that a petitioner is not limited to offering
only “newly discovered” evidence (that is, evidence discovered
post-conviction). See Gomez v. Jaimet, 350 F.3d 673, 679-80
(7th Cir. 2003); Griffin v. Johnson, 350 F.3d 956, 961-63 (9th
Cir. 2003). We need not weigh in today on the “newly
presented” versus “newly discovered” issues because, as we
note below, we write in the context of a claim that a post-
conviction Supreme Court decision has held that the statute of
conviction does not reach the petitioner’s conduct.

                                17
United States, 523 U.S. 614 (1998), for example, the Supreme
Court held that a habeas petitioner may demonstrate “actual
innocence” by pointing to post-conviction decisions “holding
that a substantive criminal statute does not reach [his] conduct.”
Id. at 620.
        The petitioner in Bousley had pleaded guilty to “using”
a firearm in connection with a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1). He sought collateral relief from the
resulting conviction, claiming that his plea was not knowing and
intelligent because he was misinformed by the court as to the
nature of the crime charged. Following Bousley’s conviction,
the Supreme Court held in Bailey v. United States, 516 U.S. 137
(1995), that the “use” prong of § 924(c)(1) required the
Government to show “active employment of the firearm.” Id. at
144. Thus, contrary to the previously prevailing view, a
defendant could no longer be “charged under § 924(c)(1) merely
for storing a weapon near drugs or drug proceeds” or for
“placement of a firearm to provide a sense of security or to
embolden.” Id. at 149.
        In Bousley, the Court agreed with the Government that
the petitioner had procedurally defaulted his claim that his plea
had not been knowing and intelligent. It held, however, that
Bousley could cure this default by showing that, under the new
Bailey interpretation of “using,” he was “actually innocent” of
violating § 924(c)(1). Accordingly, Bousley had to be afforded
the opportunity to “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 (quoting
Schlup, 513 U.S. at 327-28). If successful, Bousley would then
be entitled to have his claim to post-conviction relief considered
on its merits. The Court stressed that “actual innocence” in this

                               18
context means “factual innocence” and that the Government is
not limited to the existing record to rebut any showing that
petitioner might make. Id. at 624.
        Relying on Bousley and our ensuing decision in United
States v. Garth, 188 F.3d 99 (3d Cir. 1999), Davies here seeks
to cure his procedural default by demonstrating that he is
actually innocent of violating § 844(i) as interpreted by the
Supreme Court in Jones.          The District Court properly
determined that Davies was entitled to the benefit of Jones in his
effort to show actual innocence and, in accordance with
Bousley, held an evidentiary hearing at which the Government
was permitted to introduce evidence demonstrating that Davies
was not actually innocent of the interstate commerce element of
§ 844(i) under Jones. Thereafter, it determined that the
evidence as a whole established Davies’s guilt. We now apply
the Jones legal standard de novo to the factual determinations
reached by the District Court, none of which were clearly
erroneous. That application leads us to a conclusion contrary to
that reached by the District Court.

       A. Jones and the Interstate Commerce Element
                   of 18 U.S.C. § 844(i)

       As we have noted, 18 U.S.C. § 844(i) makes it a federal
crime to “maliciously damage[] or destroy[], or attempt[] 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. . . .” Id. (emphasis added). In
Jones, the Supreme Court concluded that Congress did not
“evoke its full authority under the Commerce Clause” in

                               19
enacting § 844(i) and that the “key” words here are “the
qualifying words ‘used in’ a commerce-affecting activity.”
Jones, 529 U.S. at 854. By its terms, the statute applies only to
property that is ‘used’ in interstate commerce or in an activity
that affects interstate commerce. This “used in” qualification,
the Court concluded, “is most sensibly read to mean active
employment for commercial purposes, and not merely a passive,
passing, or past connection to commerce. . . .” Id. at 855
(emphasis added). Accordingly, the “proper inquiry . . . ‘is into
the function of the building itself, and then a determination of
whether that function affects interstate commerce.’” Id. at 854
(quoting from United States v. Ryan, 9 F.3d 660, 675 (8th Cir.
1993) (Arnold, C.J., concurring in part and dissenting in part)).
In this context, it is of course “clear . . . that only business-
related activities constitute ‘commerce.’” United States v.
Mennuti, 639 F.2d 107, 109-10 (2d Cir. 1981); see Jones, 529
U.S. at 854-55 n.6 (endorsing Mennuti in relevant part).
“Interstate commerce” is defined as “commerce between any
place in a State and any place outside of that State. . . .” 18
U.S.C. § 841(b).
        Applying this interpretation of the statute to the facts
before it, the Jones Court held that “an owner-occupied
residence not used for any commercial purpose does not qualify
as property ‘used in’ commerce or commerce affecting activity.”
Jones, 529 U.S. at 850-51. The owners’ securing natural gas,
a mortgage, and an insurance policy from out of state was found
not to constitute “use” of the property in a commerce or
commerce-affecting activity.
        In support of its conclusion, the Court noted that if
nothing more than these de minimis connections to interstate
commerce were required to come within the scope of § 844(i),

                               20
“hardly a building in the land would fall outside the federal
statute’s domain.” Id. at 857. This fact required adoption of the
petitioner’s narrower construction “[g]iven the [constitutional]
concerns brought to the fore in Lopez” regarding the power of
Congress “to render the ‘traditionally local criminal conduct’ in
which petitioner Jones engaged ‘a matter for federal
enforcement.’” Id. at 858 (quoting United States v. Bass, 404
U.S. 336, 350 (1971)). Section 844(i), the Court concluded, is
not “soundly read to make virtually every arson in the country
a federal offense.” Jones, 529 U.S. at 859.
        The text–“used in interstate commerce . . . or in any
activity affecting interstate . . . commerce”–“suggests two
methods by which a building can fall within section 844(i)’s
interstate commerce element: the commercial function of the
property could directly inject it into the stream of interstate . . .
commerce and/or the building’s functions could cause it to be
used in an activity affecting interstate commerce.” United States
v. Rea, 300 F.3d 952, 961 (8th Cir. 2002). We do not
understand the Government to contend that the church Davies
burned was directly in the stream of interstate commerce. It
does insist, however, that the church building was used in
activities affecting interstate commerce. We know from Jones,
however, that for a building to be in that category it must be
“active[ly] employ[ed] for commercial purposes.”
Accordingly, we turn to the question of whether, at the time of
the fire, the Calvary Baptist Church building was so employed.

                 B. The Calvary Baptist Church

       The Calvary Baptist Church building contained a
sanctuary used for religious purposes and a small school. “A

                                21
church, like the owner-occupied residence considered in Jones,
generally does not function in a manner that places it in any
significant relationship with commerce, let alone interstate
commerce. A church’s primary function is essentially non-
commercial and non-economic.” United States v. Lamont, 330
F.3d 1249, 1254 (9th Cir. 2003); see also Rea, 300 F.3d at 960
(“The fact that a building is a church, without more, however,
does not bring it within the ambit of section 844(i).”); United
States v. Carr, 271 F.3d 172, 179 (4th Cir. 2001) (“[U]se of a
building as a church does not alone qualify it as being ‘used in’
interstate commerce.”). In short, a normal church is no more
“active[ly] used for commercial purposes” than was the
residential home in Jones.
       It is true, as the Government insists, that churches can
engage in commercial functions. See Lamont, 330 F.3d at 1255
(describing “megachurches” that offer banking, shopping,
barbershop, and fitness center services and suggesting that these
functions may be sufficiently unrelated to religious worship to
warrant the inclusion of such churches within the scope of §
844(i)). The record regarding the Calvary Baptist Church
building, however, indicates that it was not being “actively used
for commercial purposes.”
       At Davies’s actual innocence hearing, the Government
introduced the following evidence in an attempt to show that the
Calvary Baptist Church building was “used in [an] activity
affecting interstate . . . commerce” under § 844(i):

       (1)    the church building contained a small school that
              was not shown to be selling its educational
              services. Its 75 students, after graduation,
              attended out-of-state universities, some of whom

                               22
              received donations from the church;

       (2)    the school purchased textbooks, desks, chairs,
              sports equipment, trophies, school bus engines,
              and school bus tires from out-of-state;

       (3)    the church raised $24,000 per year from 1989 to
              1998 (the year of the arson) to support the
              building of an out-of-state church in Wisconsin;

       (4)    in 1998, the church made $12,000 in donations to
              ten missions, nine of which are in foreign
              countries and one of which is in California.9


  9
    Although we operate under the “actual innocence” gateway
whereby the Government may “present any admissible evidence
of petitioner’s guilt even if that evidence was not presented
during petitioner’s plea colloquy,” Bousley, 523 U.S. at 624
(emphasis added), the Supreme Court has limited the
Government to introducing only evidence proving that the
petitioner is guilty of the crime charged in the indictment.
       In Bousley, the Government “maintain[ed] that [Bousley]
must demonstrate that he is actually innocent of both ‘using’ and
‘carrying’ a firearm,” both of which the relevant statute there, 18
U.S.C. § 924(c)(1), made a crime. Bousley, 523 U.S. at 624.
The Supreme Court noted, however, that
       petitioner’s indictment charged him only with
       ‘using’ firearms in violation of § 924(c)(1). And
       there is no record evidence that the Government
       elected not to charge petitioner with ‘carrying’ a

                                23
        We find the Government’s first argument foreclosed by
United States v. Lopez, 514 U.S. 549 (1995). In Lopez, the
appellant had been indicted for violating the Gun-Free School
Zone Act of 1990 by possessing a firearm in what he knew to be
a school zone. He moved to dismiss the indictment on the
ground that the Commerce Clause did not confer upon Congress
the power “to legislate control over . . . public schools.” Id. at
551. The District Court denied the motion, concluding that the
statute was an “exercise of Congress’ well-defined power to
regulate activities in and affecting commerce, and the ‘business’
of elementary, middle and high schools . . . affects interstate
commerce.” Id. at 551-52. In support of this position, the
Government argued as follows:



       firearm in exchange for his plea of guilty.
       Accordingly, petitioner need demonstrate no more
       than that he did not ‘use’ a firearm as that term is
       defined in Bailey.
Id.
       Although the statute here includes both interstate and
foreign commerce within its reach, Davies need only show that
the building he destroyed was not used in interstate commerce,
as charged by his indictment. The church’s donations to
missions in foreign countries, are, of course, not probative of its
connection to interstate commerce.             Accordingly, the
Government’s evidence suggesting that the church raised
donations in 1998 sent to nine foreign missions is irrelevant to
whether Davies destroyed a building used in interstate
commerce, although the evidence indicating that funds were
raised for a California mission remains relevant.

                                24
       [T]he presence of guns in schools poses a
       substantial threat to the educational process by
       threatening the learning environment.              A
       handicapped educational process, in turn, will
       result in a less productive citizenry. That, in turn,
       would have an adverse effect on the Nation’s
       economic well-being.           As a result, the
       Government argues that Congress could rationally
       have concluded that [18 U.S.C.] § 922(q)
       substantially affects interstate commerce.

Lopez, 514 U.S. at 564.

        The Supreme Court rejected this argument, holding that
a public school does not engage in an activity that has sufficient
effects on interstate commerce to bring the statute within
Congress’s power to regulate commerce. In the course of
reaching this conclusion, the Court observed that the statute “by
its terms has nothing to do with ‘commerce’ or any sort of
economic enterprise, however broadly one might define those
terms.” Id. at 561. It took issue with the dissent’s position that
“Congress . . . could rationally conclude that schools fall on the
commercial side of the line,” noting that this view “lacks any
real limits” and would give Congress the authority “to regulate
each and every aspect of local schools.” Id. at 566.
        In Lopez, the Supreme Court was interpreting the
Commerce Clause rather than § 844(i). Nevertheless, Lopez
convinces us that the Court does not view a public school as
actively engaged in commerce and we are constrained to
interpret § 844(i) to avoid the constitutional issues that would
otherwise arise under Lopez. Because we cannot distinguish the

                               25
public school in Lopez from the school operated in the Calvary
Baptist Church, we cannot conclude that the latter’s building
was actively employed for commercial purposes as a result of its
use as a school.
        The Government’s added twist here, that some students
eventually went off to out-of-state colleges, would not
distinguish the school within the Calvary Baptist Church
building from most any school. Additionally, the fact that the
school here may have given donations to other out-of-state
schools does not convert the non-commercial role of the church
school (or the out-of-state schools) into a commercial one.
        The fact that this local school purchased goods (such as
textbooks, desks, and chairs) from the national economy
incident to running a local school surely is also not enough to
bring its building within the ambit of § 844(i). As the Supreme
Court observed in Jones, “[p]ractically every building in our
cities, towns, and rural areas is constructed with supplies that
have moved in interstate commerce, served by utilities that have
an interstate connection, financed or insured by enterprises that
do business across state lines, or bears some other trace of
interstate commerce.” Jones, 529 U.S. at 857. The owners of
the private home at issue in Jones also undoubtedly purchased
furniture and equipment that moved in interstate commerce, and
the public high school at issue in Lopez also purchased similar
school supplies that moved in interstate commerce. Thus, the
fact that the church school, a non-commercial entity, purchased
goods that have moved in interstate commerce is not enough to
bring its destruction within § 844(i), lest every other local school
in our nation be subject to § 844(i). These types of
“connections” to interstate commerce


                                26
       constitute the type of attenuated contacts with
       interstate commerce that this particular church
       and most other churches in modern society have,
       and that are insufficient to bring a religious entity
       within the statutory definition. Jones emphasized
       that, in reviewing the application of § 844(i) to a
       particular arson, we must look for “active
       employment for commercial purposes, and not
       merely a passive, passing, or past connection to
       commerce.”

Lamont, 330 F.3d at 1256 (quoting Jones, 529 U.S. at 855). The
purchase of goods for use in conducting the activities of a local
school is hardly “active employment for commercial purposes.”
        With respect to the fact that the church building was used
to send funds to a Wisconsin congregation, “[t]hat the church
may receive from or transmit funds to a national or religious
entity with which it is affiliated does not mean that its activity
has changed from non-commercial to commercial.” Lamont,
330 F.3d at 1256. The fact that the church building here was
used to send funds to another non-commercial religious
organization in Wisconsin does not somehow mean that both
churches were engaged in interstate commercial activity, or an
activity affecting interstate commerce. Under the Government’s
view, hardly a single church would escape being a “national”
one subject to § 844(i) because the raising of contributions
ultimately sent to support out-of-state religious work would
somehow affect interstate “commerce.”
        We are thus left with the fact that the Calvary Baptist
Church raised some portion of $12,000 for a mission in
California. The record does not detail what sorts of activities

                               27
the California mission undertook. We are mindful, of course,
that we operate under the actual innocence gateway, whereby,
“[t]o establish actual innocence, [Davies] 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 (quoting Schlup, 513 U.S. at 327-328) (internal
quotation marks omitted). But the juror of which this speaks is
a juror instructed that there can be no convictions unless he or
she is persuaded of each element of the offense beyond a
reasonable doubt. The raising of some portion of $12,000
within the Calvary Baptist Church building sometime in 1998
for an out-of-state mission whose activities are not known is
simply not enough to support a finding of “active employment
for commercial purposes,” Jones, 529 U.S. at 855.
        Thus, the Government has failed to provide any basis
under which a reasonable juror could determine that the Calvary
Baptist Church building in 1998 was used in an activity
affecting interstate commerce, and Davies has demonstrated that
he is actually innocent of a violation of 18 U.S.C. § 844(i).10


    10
      Several circuit courts have reached the same conclusion
with respect to church buildings with similarly passive
connections to interstate commerce. See, e.g., Lamont, 330
F.3d at 1256-57 (§ 844(i) did not apply where church purchased
gas, insurance, and supplies from out of state, and several
churchgoers resided out of state); Rea, 300 F.3d at 962
(purchase of supplies for church annex, along with after-school
tutoring program and Sunday school having been conducted in
the annex, were insufficient to bring church annex within scope
of § 844(i)); Odom, 252 F.3d 1289 at 1296-97 (receiving

                                28
                                V.

        The District Court did not err in declining to grant relief
on Davies’s second and third claims. With respect to his first
claim, we hold only that Davies has made a sufficient showing
to overcome his procedural default and, accordingly, that he is
entitled to have the District Court rule on the merits of that
claim. We will therefore remand to afford it an opportunity for
it to do so.
        The parties have not briefed and we express no opinion
on whether Davies’s first claim falls within the strictly limited
circumstances in which § 2255 permits relief from a guilty plea.
As we have earlier noted, we acknowledge some uncertainty as
to the nature of that first claim. At times, it is set forth in a
manner consistent with a claim that the Constitution requires the
presentation of a basis in fact for a plea similar to that required



donations from two out-of-state donors, utilizing books
purchased from out of state, and indirectly contributing to an
out-of-state church organization were connections “too passive,
too minimal and too indirect to substantially affect interstate
commerce”); Johnson, 194 F.3d at 662 (payment of insurance
claim by out-of-state insurer and contribution of funds by church
members to church’s national organization were insufficient to
meet interstate commerce element), vacated and remanded by
530 U.S. 1201 (2000) (in light of Jones), reinstated with one
additional change by 246 F.3d 749 (5th Cir. 2001); see also
United States v. Laton, 352 F.3d 286, 299 n.12 (6th Cir. 2003)
(collecting cases).

                                29
by Rule 11 of the Federal Rules of Criminal Procedure. At other
times, that claim is presented in a manner consistent with a
contention that a generally prevailing misunderstanding
regarding the interstate commerce element of § 844(i) at the
time of Davies’s plea resulted in that plea being “unintelligent”
and thus constitutionally invalid. See Bousley, 523 U.S. at 618-
19 (“[P]etitioner contends that the record reveals that neither he,
nor his counsel, nor the court correctly understood the essential
elements of the crime with which he was charged. Were this
contention proved, petitioner’s plea would be . . .
constitutionally invalid.”). See also Garth, 188 F.3d at 108-09
(Pro se petitioner’s “assertion that there was no factual
foundation for his guilty plea equates to an assertion of a due
process violation based on being sentenced to prison . . . for
conduct that he did not know was not criminal under [the]
statute.”). We leave it to the District Court to clarify the nature
of that claim, to determine its legal sufficiency, and to ascertain
whether it can be factually supported.
        We will reverse the judgment of the District Court and
remand for further proceedings consistent with this opinion.




                                30
