PETITION FOR CERTIFICATE OF APPEALABILITY
On February 26, 1997 Petitioner was convicted of aiding and abetting an act of arson, in violation of 18 U.S.C. 844(i) and 2. Petitioner and his co-defendants were accused of setting fire to two Ammonium Nitrate & Fuel Oil (“ANFO”) storage trailers at the Highway 71 construction site on November 29, 1988 where six firefighters died. He was sentenced to life without parole. This Court affirmed his conviction and sentence in United States v. Edwards, 159 F.3d 1117 (1999).
On September 28, 2000, Petitioner filed a “2255” motion asking that his conviction be set aside, or his sentence corrected. Sixteen claims were included (12 of which are “ineffective assistance of counsel”). Almost three years later, without an evidentiary hearing, citations to the record, much less any explanation, Judge Fernando Gaitan, denied all relief. See attached July 11, 2003 Order. (He was assigned the case because the Honorable Brook Bartlett and the Honorable Joseph Stevens are deceased.)
On August 19, 2003, the undersigned filed a Petition for Certificate of Appealability, and a Notice of Appeal. On September 16, 2003, Judge Gaitan denied appealability, stating only that “movant failed to meet th[e] burden” set forth in 28 U.S.C. 2253. Petitioner must now depend on this Court for an opportunity to be heard. If this Court does not certify all claims, it is requested that it do so at least as to some:
Framework Within Which COA Request is to be Considered
A certificate of appealability is a prerequisite to seeking review of a District Court’s denial of a “2255” motion. The applicant must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253. The Supreme Court recently expounded upon this rather brief language in Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). As to each claim, if reasonable jurists could debate whether it should have been resolved differently, or if it was adequately presented to deserve encouragement to proceed further, the certificate should issue. The applicant need not show the appeal will succeed. Rather, “[t]he question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id., 123 S.Ct. at 1042.
Identity of Issues and Reasons for Certification[1]
1. Whether Petitioner’s conviction must be vacated in light of Jones v. United States and United States v. Ryan, which hold that arson in many cases is not a federal offense because of the lack of impact on, and nexus with, interstate commerce.
Petitioner contends that the District Court lacked subject matter jurisdiction over this offense in light of Jones v. United States, 120 S. Ct. 1904, 529 U.S. 848, 146 L.Ed.2d 902 (2000) and United States v. Ryan, 227 F.3d 1058 (8th Cir. 2000). Both precedents examine the appropriateness of federal jurisdiction over arsons which were charged under 18 U.S.C. 844(i). And both acknowledge the question of whether 18 U.S.C. 844(i) itself is unconstitutional after United States v. Lopez, 115 S. Ct. 1624, 514 U.S. 549, 131 L.Ed.2d 626 (1995). Justice Thomas penned in Jones, 120 S. Ct. at 1913, “I express no view on the question whether the federal arson statute, 18 U.S.C. 844(i)(1994 ed., Supp. IV), as there construed, is constitutional in its application to all buildings used for commercial activities.” Lopez, Jones and Ryan all hold that a subject which is merely related to interstate commerce fails to provide federal jurisdiction, and Jones and Ryan set forth the test to determine whether an arson is properly charged in federal court.
The record in the case at bar contains insufficient evidence of interstate commerce to support assertion of federal jurisdiction. The only testimony about this element was that (1) Brown Brothers Construction was a Missouri company, and (2) it used equipment brought from Kansas. See pages 1747 and 1769. (Norman Collins, President of Mountain Plains Construction also testified, responding affirmatively to a question about whether the project was funded using federal money, but he then acknowledged that this was merely his belief. See page 1769. He did not actually know how the project was financed, and the Government offered no other evidence about it.) See United States v. Odom, 252 F.3d 1289 (11th Cir. 2001)(church arson conviction vacated due to insufficient showing of connection with interstate commerce).
By contrast, the Government in its “2255” response brief cited no testimony or evidence. The District Court in its July 11, 2003 Order cited to none either. This absence of justification for the conclusion that “sufficient evidence was presented to show that the property in question possessed an active commercial function and that function affected interstate commerce” underscores what was not proven. No evidence was offered about ANFO’s supply source, or ANFO’s link to, or affect on commerce. More significantly, according to the Supreme Court in Jones, are the trailers themselves. They are not “buildings” or “vehicles” as defined by 844(i). Rather, they were only storage containers. And the Government offered nothing about how those trailers “substantially affect” interstate commerce. See Jones, 120 S.Ct. at 1911-12 (inquiry is not whether interstate commerce affects the building, but instead how the building itself specifically and substantially affects interstate commerce). Thus, the Government failed woefully in offering sufficient proof for this element of the offense. In the absence of proof about the nexus with, or affect on, interstate commerce by the trailers, there is no federal jurisdiction which can be asserted. See Ryan, end of section I (“We agree that there is insufficient evidence to satisfy the interstate commerce element of section 844(i), as construed in Jones. We thus conclude that because Ryan’s conviction is for an act that section 844(i) does not make illegal, he is entitled to relief under section 2255.”)
The paucity of testimony about interstate commerce certainly gives rise to a debate for reasonable jurists concerning the sufficiency of evidence supporting federal jurisdiction. Because the claim challenges the District Court’s power to try Petitioner, his due process rights are inextricably intertwined. Judge Gaitan agreed that there are no procedural bars, but then stated that Jones and Ryan re-confirm the arson statute’s constitutionality after Lopez. Given Justice Thomas’ equivocating statement in Jones, reasonable jurists can certainly debate that, too. As such, this claim should be certified.
2. Whether Petitioner’s conviction must be vacated, or at least his sentence corrected, in light of Jones v. United States and Apprendi v. New Jersey.
Petitioner was convicted pursuant to a jury instruction which merely told the jury to deliberate about the crimes of “arson” and “aiding and abetting,” without reference to the additional elements of resultant personal injury or death. Thereafter, Judge Stevens imposed a life sentence, based on his own finding, by a preponderance of the evidence, that the arson resulted in death. Proceeding this way violates Jones v. United States, 119 S.Ct. 1215, 526 U.S. 227, 143 L.Ed.2d 311 (1999) and Apprendi v. New Jersey, 120 S.Ct. 2348, 530 U.S. 466, 147 L.Ed.2d 435 (2000), which hold that enhanced penalty sentencing by judges rather than juries is unconstitutional. At the time of the offense in the case at bar (1988), the statutory maximum penalty for arson was 10 years. But if personal injury resulted, the maximum increased to 20 years. And if someone died, the penalty increased to a term of any years, or life imprisonment or death.
Underscoring the magnitude of this injustice are the remarks by Judge Stevens at sentencing: “I do not believe, as Mr. Osgood has announced to all of you, I announced to him during the trial, that these men intentionally and with malice aforethought went out to kill six Kansas City firefighters. I do believe that they conducted themselves in such a way and committed such act as to clearly and irretrievably make them fall under the statute which prohibited that conduct and set the sentence as penalty for it. That is the reason I announced what I announced today about the sentencing level.” Page 4064.
This claim is constitutional, as it deals with Petitioner’s due process rights. The Supreme Court has yet to decide whether Jones and Apprendi may be applied retroactively to convictions prior to 1999. Thus, the claim is still potentially viable and should be accorded appealability so that Supreme Court review may be sought, if necessary. Additionally, the District Court found that Petitioner and his co-defendants are barred from raising this claim because their trial attorneys, while objecting to the life sentences Judge Stevens imposed, did not lodge a constitutional objection. This, too, should be reviewed. See pages 3972-75, 3989-4005, and 4018-4019 (Attorney Osgood’s record that Government has burden on factual issues prerequisite to imposition of sentencing enhancement). Notwithstanding, “waiver” is inapplicable where an essential element of the offense is lacking. Jones v. Delo, 56 F.3d 878 (8th Cir. 1995)(Government’s failure to prove essential element cognizable as actual innocence claim). For all of these reasons, Petitioner asks for certification of this claim.
3. Whether Petitioner’s received ineffective assistance of counsel during trial.
Petitioner’s trial attorney was ineffective in several respects. Of course, the Sixth Amendment guarantees the right to competent representation at trial. A petitioner claiming “ineffective assistance” must point to counsel’s objective performance deficiencies and demonstrate resultant prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Not only did Judge Gaitan err by not holding an evidentiary hearing on these claims, he failed to cite any evidence from the trial to justify his sweeping conclusion that Petitioner failed to “me[e]t his burden of showing counsel’s performance was deficient and that the deficiency prejudiced petitioner’s defense.” July 11, 2003 Order, page 9. Given that he did not preside over the trial, and because he offered no support for his conclusion, reasonable jurists most certainly can debate, at the very least, whether a hearing should have been held. Miller-el, 123 S.Ct. at 1039 (certificate should issue if claims were adequate to deserve encouragement to proceed further). Reasonable jurists can also debate the merits of each claim, simply on record accompanying the 2255 motion. Either way, each claim should be reviewed:
A. Whether Petitioner received ineffective assistance where counsel failed to ask for a mistrial because the Judge neglected to answer a note from the jury inquiring about the significance it could give to the Grand Jury’s investigation and conclusion.
Toward the end of the trial, at the close of the Government’s case but before the defense began its presentation, the jury asked: “What was the purpose of the grand jury trial for this case? Can I ask what was the outcome?” (See page 3243) Judge Stevens indicated to counsel he would instruct the jury. But he never did, and no attorney reminded him, thus prejudicing the defendants. (See pages 3248-85)
The jury’s note evidenced a group mentality of laziness. Obviously, the jury wanted to merely supplant deliberations with what it perceived to be a similar jury’s decision. (See pages 3243-3245) Judge Stevens never explained that (1) the burden of proof in a grand jury proceeding is the slightest in our justice system, and that (2) the Government meets secretly with the Grand Jury, without any defense attorneys or judge present. A mistrial should have been declared, especially given that the jury’s confusion over so distinct a difference in role and evidentiary consideration was never rectified. The failure of defense counsel to follow through with forcing the Court to correct the jury’s misconception of its role versus that of the grand jury constitutes ineffective assistance, and the incident also violates due process. The Government provided no details about the matter in its response brief opposing Petitioner’s “2255” motion. As such, reasonable jurists could debate Judge Gaitan’s summary conclusion that the claim has no merit. Appealability should be granted.
B. Whether Petitioner received ineffective assistance where counsel failed to object to the Government’s “Bruton” sanitization of witnesses’ statements.
Because many prosecution witnesses claimed one or more defendants not only made incriminating statements, but also implicated one or more co-defendants, the District Court, pursuant to Gray v. Maryland, 118 S. Ct. 1151, 523 U.S. 185, 140 L.Ed.2d 294 (1998), approved of the Government altering witnesses’ statements by supplanting co-defendant(s)’ names with “we” and “they.” Defense counsel’s acquiescence, and advice to Petitioner not to testify, in order to maintain the witnesses’ statements in redacted form, constituted ineffective assistance. Replacing names with “we” and “they” may work in a two-defendant trial, but in a five-defendant case the jury is led to the inescapable conclusion that the pronouns are one-word substitutes for the group.
The undersigned provided two charts with Petitioner’s 2255 motion. One listed each redaction, and the other showed the exculpatory cross-examination thereby denied each defendant. They demonstrate the prejudice occasioned each defendant, because none of the witnesses ever identified all five. Rather, each statement applied only to one, two or arguably three defendants at most, as well as others unidentified and unindicted, leaving the other defendants unprotected from unfair inference.
Instead, counsel should have insisted that each statement be presented in its true form, to establish the other unindicted individuals on whom blame could be shifted, or through whom reasonable doubt could be argued (i.e., Question to witness: “You don’t see Mr. Q here, do you?” Argument to jury: “If the Government really believed its witness, X, would not the other named unindicted individual(s) be on trial here too?”) Had the witnesses testified without pronouns, each defendant would have benefited from the most effective cross-examination of all: “When defendant purportedly confessed to you, and listed those others involved, my client was not named? Correct?”)