Opinion
Criminal No. 98-61-P-C,(Civil No. 00-250-P-C)
February 21, 2001
ORDER TO ANSWER
Coleman Beeler, a prisoner at the Federal Correction Institute in Ray Brook, New York, has filed this petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255. (Docket No. 108.) The United States complied with an order to answer. (Docket No. 130.) Thereafter, Beeler filed a motion to amend his petition to include an additional ground for challenging the imposed sentence. (Docket No. 132.)
After review of the submissions before me, I ORDER the United States to file a supplemental answer. In its initial answer the United States addressed Beeler's argument that the District Court lacked subject — matter jurisdiction over him under 18 U.S.C. § 844(i), acknowledging that Beeler could not be deemed to have waived his challenge to the court's subject — matter jurisdiction. However, the United States did not address the implications of Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904(2000). In Jones the United States Supreme Court concluded that a charge of arson involving a private dwelling was not within the ambit of § 844(i) because the owner-occupied residence was not used in commerce or in an activity affecting interstate commerce. Id. Jones was on a direct appeal of the sentence after a jury trial and the Court remanded, ordering that the defendant's conviction must be vacated. Id. The Court did not directly address the dispute in terms of jurisdiction.
Beeler has also filed a "Motion for Relief from Waiver for Good Cause for Constitutional Claim" (Docket No. 110) in which he asserts that the District Court lacked subject matter jurisdiction. He argues that his neglect in asserting a claim of a lack of subject matter jurisdiction was excusable because the grounds for doing so were unknown at the time of his plea. He cites to Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904 (2000), discussed below. The United States answers that this motion is unnecessary or duplicative in light of Beeler's challenge to subject matter jurisdiction. I agree. If Beeler's challenge to subject matter jurisdiction has any staying power, I will address it under the appropriate standard after the pleadings are complete.
The progress of United States v. Rea, a case relied upon by the United States in its initial answer, raises concern with respect to the jurisdictional implications of Jones. Rea entered a conditional guilty plea on a § 844(i) charge for arson of a church, reserving the right to appeal the District Court's denial of his motion to dismiss the indictment for want of subject — matter jurisdiction. In its first treatment of the subject — matter jurisdiction question, the Court of Appeals for the Eighth Circuit rejected Rea's challenge. First it concluded, "section 844(i)'s `interstate commerce' requirement, while jurisdictional in nature, is merely an element of the offense, not a prerequisite to subject — matter jurisdiction." United States v. Rea, 169 F.3d 1111, 1113 (8th Cir. 1999) (citing United States v. Ryan, 41 F.3d 361, 363 (8th Cir. 1994)). Then, addressing the challenge as a sufficiency of the evidence concern, it determined, pursuant to its prior precedent, that a de minimis connection to interstate commerce sufficed. Id. Acting on the defendant's petition for a writ of certiorari, the United States Supreme Court remanded the case to the Eighth Circuit for consideration in light of Jones. Rea v. United States, 120 S.Ct. 2193 (2000) (mem). On remand the Eighth Circuit concluded that there was insufficient fact-finding by the District Court — that was ruling on the defendant's motion to dismiss the indictment for want of subject — matter jurisdiction or, in the alternative a motion for entry of judgment of acquittal — for it to determine whether the connections to interstate commerce met the requirements mandated by Jones. United States v. Rea, 223 F.3d 741, 744 (8th Cir. 2000).
Rea had moved, in the alternative, for a judgment of acquittal.
Jones calls into question the United States's future reliance on the First Circuit's de minimis Standard applied in United States v. Disanto, 86 F.3d 1238 (1st Cir. 1996).
Though this treatment does not clarify the Supreme Court's position as to the jurisdictional nuisances of § 844(i), it does make clear that the Jones standard applies to cases that preceded its pronouncement. See also United States v. Ryan, 227 F.3d 1058, 1062-63 (8th Cir. 2000) (concluding that Jones applies retroactively).
Though neither Rea nor Jones mirrors the procedural posture of the case before me, they raise significant questions about the issue of subject — matter jurisdiction. This is a potential infirmity with which I cannot easily dispense even in the context of a collateral review of a conviction and sentence that was never directly appealed. Far reaching are the implications of whether or not the sufficiency of the interstate commerce connections is determinative of subject — matter jurisdiction or is merely an element of the offense. See DiSanto, 86 F.3d at 1246 (citing United States v. Ryan, 41 F.3d 361, 363-63 (8th Cir. 1994) and treating the interstate commerce connection as an element of the offense). See also Jones, 529 U.S. at 120 S.Ct. at 1909-10 (posing the question as whether § 844(i) "applies to the arson of a private residence," answering that it "does not reach an owner occupied residence that is not used for any commercial purpose") (emphasis added); Ryan, 227 F.3d at 1063 (treating a post — Jones collateral challenge to the § 844(i) interstate commerce connection as a sufficiency of the evidence inquiry, which was a ground raised on direct appeal, and overturning United States v. Ryan, 41 F.3d 361 after identifying insufficient evidence under Jones that the fitness center was used in an activity affecting commerce). The scope of my review turns, in large measure, upon whether or not this Jones — based attack is cognizable as a challenge to the court's subject-matter jurisdiction or as a test of the sufficiency of the evidence. Therefore, I offer the United States the opportunity to address the issues raised by Jones and its progeny, especially the appropriate scope of my review in this collateral attack.
I also GRANT Beeler's motion to amend and ORDER the United States to ANSWER Beeler's assertion regarding the impropriety of the U.S.S.G. § 2K2.1(b)(3) enhancement in light of the cited and attached "Application Note" to the Sentencing Guidelines." Though the motion came in after the United States's answer was filed, under the Federal Rules of Civil Procedure leave to amend after a responsive pleading has been filed must be "freely given when justice so requires." Fed.R.Civ.P. 15(a). Congress has expressly provided that this standard, operative in civil actions, applies to amendments to or supplementation of habeas applications. See 28 U.S.C. § 2242; see also James v. Giles, 221 F.3d 1074,1077-78 (9th Cir. 2000) (observing that Federal Rule of Civil Procedure 15(a) applies to habeas corpus actions just as it does to "garden variety" civil actions); Scott v. Clark, 761 F.2d 1524, 1527 (11th Cir. 1985) (pro se § 2255 petitioner's efforts to amend should have been permitted by the district court under Rule 15(a), even though the petitioner had not sought leave to amend). Further, in light of the need of the United States to respond to the concerns raised by Jones and Rea, allowing the amendment and seeking a response from the United States will not result in an additional delay, while assuring that this disposition of Beeler's first habeas petition is comprehensive and well considered.
The United States must file its amended answer by March 23, 2001.
SO ORDERED.