                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-18-2003

Trenkler v. Pugh
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1775




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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-1775


                               ALFRED W. TRENKLER,

                                                        Appellant

                                            v.

                               MICHAEL PUGH, Warden




                      Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           (D.C. Civil Action No. 02-cv-01736)
                      District Judge: Honorable Richard P. Conaboy


                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 12, 2003

               Before: AMBRO, FUENTES and GARTH, Circuit Judges

                           (Opinion filed : December 18, 2003)




                                        OPINION

AM BRO, Circuit Judge

       Petitioner Alfred W. Trenkler is serving concurrent life sentences in the United

States Penitentiary at Allenwood for convictions under the federal arson statute and other
statutes. He petitioned the United States District Court for the Middle District of

Pennsylvania for relief from this sentence under 28 U.S.C. § 2241, arguing that, in light

of the Supreme Court’s decision in Jones v. United States, 529 U.S. 848 (2000), the

conduct for which he was convicted is no longer criminal. Because Jones v. United

States does not decriminalize the conduct at issue in this case, we affirm the District

Court’s denial of Trenkler’s § 2241 petition for lack of jurisdiction.


                                           I.
                              Facts and Procedural Posture

       In October 1991, an explosion at the Roslindale, Massachusetts home of Thomas

Shay, Sr. killed one Boston Police Bomb Squad Officer and severely maimed another.

The police officers had been investigating a suspicious object in Shay Sr.’s driveway,

which he reported finding after hearing noises coming from the floorboards of his 1986

Buick Century. Police later arrested two suspects, Trenkler and Thomas Shay, Jr., for

their respective roles in the explosion. The two men were indicted by a grand jury and

tried separately. At Trenkler’s trial, the Government’s case was that Trenkler had built

the bomb for Shay Jr. to use against his father. See United States v. Trenkler, 61 F.3d 45,

48 (1st Cir. 1995). In 1994, Trenkler was convicted of conspiracy in violation of 18

U.S.C. § 371; receipt of explosive materials in interstate commerce with the intent to kill,

injure, and intimidate Shay Sr. and cause damage to his property, in violation 18 U.S.C. §

844(d); and attempting to damage and destroy maliciously, by means of an explosive,



                                              2
Shay Sr.’s car, which was used in interstate commerce, in violation of 18 U.S.C. § 844(i).

Trenkler was sentenced to two concurrent terms of life imprisonment for the § 844

convictions and one concurrent sixty month term for the conspiracy conviction. (Shay Jr.,

in contrast, received a 12 year sentence following a plea agreement.)

       Since the Court of Appeals for the First Circuit affirmed Trenkler’s sentence on

direct appeal in 1995, Trenkler has made several unsuccessful post-conviction motions

(including a motion for collateral relief under 28 U.S.C. § 2255, which was denied as

untimely). See United States v. Trenkler, 268 F.3d 16 (1st Cir. 2001). In October 2002,

Trenkler filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, on the

ground that the Supreme Court’s decision in Jones v. United States decriminalized the

conduct for which he was convicted and sentenced. In an order dated March 7, 2003, the

District Court denied this petition for lack of jurisdiction. We consider Trenkler’s appeal

from this decision pursuant to our jurisdiction under 28 U.S.C. § 1291.1


                                        II.
                                  AEDPA Framework

       Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal

prisoner may collaterally attack his or her sentence as unconstitutional or otherwise

flawed by filing a petition under 28 U.S.C. § 2255. A prisoner may not, however, file a



   1
    In federal habeas proceedings, we review the district court’s legal conclusions de
novo and apply a clearly erroneous standard to its factual findings. Rios v. Wiley, 201
F.3d 257, 262 (3d Cir. 2000).

                                             3
second or successive petition unless the court of appeals first certifies that it contains

either (1) newly discovered evidence sufficient to establish by clear or convincing

evidence that no reasonable factfinder would find the petitioner guilty of the offense, or

(2) a new rule of constitutional law, made retroactive to cases on collateral review, that

was previously unavailable. 28 U.S.C. § 2255. But under § 2255’s so-called “savings

clause,” a prisoner may attempt to bypass the gatekeeping provisions that otherwise

preclude successive § 2255 petitions. The savings clause allows a petitioner to seek a

writ of habeas corpus under 28 U.S.C. § 2241 when a § 2255 motion would be

“inadequate or ineffective to test the legality of his detention.” Id.

       Trenkler concedes that the arguments contained in his current petition do not

qualify for successive petition certification under § 2255 because they do not involve new

evidence or a new rule of constitutional law. Thus he may raise these arguments only in a

habeas petition under § 2241. But to do this, he must first establish that § 2255 is

“inadequate and ineffective to test the legality of his detention.”

       Mere inability to satisfy § 2255’s gatekeeping requirements for successive

petitions does not establish that § 2255 is inadequate and ineffective. In Re Dorsainvil,

119 F.3d 245, 251 (3d Cir. 1997). A § 2255 petition is inadequate and ineffective “only if

it can be shown that some limitation of scope or procedure would prevent a Section 2255

proceeding from affording the prisoner a full hearing and adjudication of his claim of

wrongful detention.” United States v. Brooks, 230 F.3d 643, 648 (3d Cir. 2000). We



                                               4
recognized in Dorsainvil, however, that “a prisoner who had no earlier opportunity to

challenge his conviction for a crime that an intervening change in substantive law may

negate” exemplifies the “uncommon situation” in which the § 2255 is inadequate and

ineffective and in which a § 2241 petition is cognizable. Dorsainvil, 119 F.3d at 251. Put

another way, § 2255 is inadequate and ineffective to test the legality of a conviction

when: “(1) at the time of conviction, settled law of this circuit or the Supreme Court

established the legality of the conviction; (2) subsequent to the prisoner’s direct appeal

and first § 2255 motion, the substantive law changed such that the conduct of which the

prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy

the gatekeeping provisions of § 2255 because the new rule is not one of constitutional

law.” In re Jones, 226 F.3d 328, 333–334 (4th Cir. 2000).

                                          III.
                 Analysis of “Intervening Change in Substantive Law”

A.     Jones does not negate Trenkler’s conviction under 18 U.S.C. § 844(i).

       Trenkler argues that Jones v. United States is an intervening change in substantive

law that negates his conviction under 18 U.S.C. § 844(i). Section 844(i) criminalizes the

malicious destruction (or attempted destruction) of a building or vehicle “used in

interstate or foreign commerce or in any activity affecting interstate or foreign commerce”

by means of an explosive or fire. Trenkler argues that Jones heightened the statute’s

interstate commerce requirements, thereby removing the conduct for which he was

convicted from federal jurisdiction.

                                              5
       Subsequent to Trenkler’s direct appeal to the First Circuit, the Supreme Court

decided Jones, and held that the federal arson statute did not apply to the burning of a

private residence that was not “used in . . . any activity affecting interstate . . .

commerce,” as § 844(i) requires. Id. at 859. There the state argued that the homeowner

“used” the residence in an activity affecting interstate commerce by (1) pledging it as

collateral to obtain a mortgage from an out-of-state lender, (2) obtaining a casualty

insurance policy from an out-of-state insurer, and (3) receiving natural gas from sources

outside the state. Id. at 855. The Court held that these “passive, passing, or past

connections to commerce” did not satisfy the statute’s requirement that the house be

“used”—i.e., “actively employ[ed]”—in commercial activity. Id. at 855, 856.

       Thus, the only issue the Supreme Court addressed in Jones was whether the

building was “used” commercially. Deciding that it was not, the Court did not need to

decide, nor did it suggest, whether the building’s commercial function sufficiently

affected interstate commerce—a distinct second step in the jurisdictional inquiry under §

844(i). Id. at 854 (“The proper inquiry, we agree, ‘is into the function of the building

itself, and then a determination of whether that function affects interstate commerce.’”

(citing United States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (R. Arnold, J., concurring in

part and dissenting in part))). Jones did not address—let alone change the law

regarding— the degree to which a building’s (or vehicle’s) function must affect interstate

commerce. See United States v. Williams, 299 F.3d 250, 258 (3d Cir.), cert. denied, 537



                                                6
U.S. 1065 (2002) (rejecting that Jones requires trial courts to instruct juries that a

substantial connection to interstate commerce is required); United States v. Grassie, 237

F.3d 1199, 1208 (10th Cir. 2002) (“The Court [in Jones] expressed no view on the ‘de

minimis’ standard for effects on interstate commerce. Its focus was on the active use

versus passive or passing relationship to commerce. The Court required only “active

employment” which affects commerce, not a particular quantum of effect.”).

       In this case, as the District Court found, there is uncontroverted evidence that Shay

Sr. actively used the Buick for commercial activity, his part-time auto body repair

business. Shay, Sr. drove the Buick to auto body parts stores to purchase parts

manufactured for foreign and domestic cars. He drove it to the offices of insurance

companies with whom he had dealings. Sometimes, and as recently as two weeks before

the bombing, he loaned it to customers while he repaired their cars. Shay Sr. thus

“actively employed” the Buick in commercial activity, and thus it had more than a

“passive, passing, or past connection” to commerce. So read, Jones does not negate

Trenkler’s conviction under § 844(i).

       This conclusion does not contradict our decision in United States v. McGuire, 178

F.3d 203 (3d Cir. 1999). There we held that, in light of the Supreme Court’s decision in

United States v. Lopez, 514 U.S. 549 (1995), local commerce with merely an

“inconsequential” or “de minimis” effect on interstate commerce could not satisfy the

jurisdictional nexus of 18 U.S.C. § 844(i). Otherwise, we cautioned, federal jurisdiction



                                               7
“could be stretched to include driving one’s daughter to a neighbor’s house to deliver a

single box of Girl Scout cookies.” 178 F.3d at 210. In McGuire, a pipe bomb exploded

inside a vehicle that was sometimes used in connection with a local catering firm. We

rejected the state’s argument that the presence of a bottle of Florida orange juice in the

vehicle’s truck —the only evidence presented to support federal jurisdiction—was a

sufficient nexus to interstate commerce for the purposes of § 844(i). In contrast, the

evidence of Shay Sr.’s auto repair business’s effect on interstate commerce was more than

a bottle of orange juice or a single box of Girl Scout cookies. Shay Sr. serviced

customers from out of state and he worked on both foreign and domestic cars. This is

more than a de minimis affect on interstate commerce.

B.     Jones does not negate Trenkler’s conviction under § 844(d).

       Trenkler also argues that Jones is an intervening change in substantive law that

negates his conviction under 18 U.S.C. § 844(d). Under that subsection, it is a crime to

“transport or receive, or attempt to transport or receive, in interstate or foreign commerce,

any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate

any individual or unlawfully damage or destroy any building, vehicle, or other real or

personal property.” Although Jones does not directly address § 844(d), Trenkler argues

that “the broader holding of Jones is that de minimis links to interstate commerce are no

longer sufficient to establish federal jurisdiction over traditionally local concerns.” Br. at

35.



                                              8
       As explained above, Jones did not so hold. It considered whether a building (or by

implication, a vehicle) was actively “used in” commercial activity, not whether that

activity sufficiently affected interstate commerce. See Williams, 299 F.3d at 258;

Grassie, 237 F.3d at 1208. Because the jurisdictional element of § 844(d) does not

require that a building or vehicle be used in activity affecting interstate commerce, Jones

is not an intervening change in substantive law that undermines Trenkler’s conviction

under § 844(d).

                                           IV.
                                        Conclusion

       Jones does not decriminalize the conduct for which Trenkler was convicted. Thus

the District Court properly held that there was not an intervening change in substantive

law that entitled Trenkler to rely on the savings clause provision of 28 U.S.C. § 2255 to

challenge the validity of his conviction pursuant to a petition under 28 U.S.C. § 2241.

We therefore affirm the District Court’s order denying Trenkler’s habeas petition.




                                             9
TO THE CLERK:

         Please file the foregoing Opinion.


                                              By the Court,




                                              /s/ Thomas L. Ambro
                                              Circuit Judge
