                 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should not be published and is not precedent except under the limited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unpublished opinions.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
