United States of America v. Russell Prevatte

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 94-3360
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
R USSELL P REVATTE ,
Defendant-Appellant.
____________
On Motion to Recall Mandate
____________
S UBMITTED D ECEMBER 27, 2001—DECIDED A UGUST 8, 2002
____________
Before C UDAHY , R IPPLE and D IANE P. W OOD , Circuit
Judges.
R IPPLE , Circuit Judge. Russell “Rusty” Prevatte brings this
motion to recall mandate and seeks immediate release
from incarceration. For the following reasons, we believe
that this motion ought to be construed as a petition for
a writ of habeas corpus under 28 U.S.C. § 2241 and trans-
ferred to the District of Colorado pursuant to 28 U.S.C.
§ 1631.
I
BACKGROUND
The facts leading up to Mr. Prevatte’s conviction are
reported in detail in two prior opinions, see United States

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2 No. 94-3360
v. Prevatte, 16 F.3d 767 (7th Cir. 1994), and United States
v. Prevatte, 66 F.3d 840 (7th Cir. 1995). We therefore shall
set forth only those facts that are pertinent to Mr. Prevatte’s
current motion.
On December 23, 1991, Mr. Prevatte and some confeder-
ates detonated a pipe bomb in an alley in Hammond, In-
diana. The bomb damaged the adjacent house and garage;
specifically, it punctured a gas meter located on the home.
It appears, but is not clear from the record, that the bomb
also damaged a pole owned or maintained by the North-
ern Indiana Public Service Company, the provider of nat-
ural gas to the adjacent house. The shrapnel from the ex-
plosion caused the death of Emily Antkowicz who was in
her yard next to the alley when the bomb exploded.
Mr. Prevatte and his confederates were apprehended sev-
eral months later. Mr. Prevatte was charged with “mali-
ciously damag[ing] or destroy[ing] . . . by means of fire
or an explosive, any building, vehicle, or other real or per-
sonal property used in interstate or foreign commerce or in
any activity affecting interstate or foreign commerce . . . .”
18 U.S.C. § 844(i). Specifically, in Count II of a twenty-four
count indictment, the grand jury charged that Mr. Prevatte
“did maliciously damage and destroy, or attempt to dam-
age and destroy, by means of an explosive, to wit: a pipe
bomb, a building or other real and personal property lo-
cated at 1425 Stanton, Hammond, Indiana which was
used in or affected interstate commerce, which resulted
in the death of Emily Antkowicz; [a]ll in violation of
Title 18, United States Code, Section 844(i) and Title 18,
United States Code, Section 2.” R.1 at 7.
At trial, the Government established the interstate link
by submitting evidence that the bombing not only had
damaged a gas meter at 1425 Stanton, but also that the
damage had caused a leak of gas that had traveled through

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No. 94-3360 3
interstate pipelines. See Prevatte, 16 F.3d at 771 n.3 (citing
Tr. VI at 813 and Tr. VII at 1228). The jury returned a ver-
dict against Mr. Prevatte on Count II of the indictment, and
the district court sentenced him to life imprisonment.
Mr. Prevatte appealed his conviction and his sentence.
However, he did not raise lack of an interstate nexus as a
basis for error. Nevertheless, this court sua sponte raised
and resolved the issue; it stated:
No claim is made on appeal that this bombing was
without the interstate commerce nexus required under
18 U.S.C. § 844(i). However, in United States v. Stillwell,
900 F.2d 1104, 1110 n.2 (7th Cir.), cert. denied, 498 U.S.
838 (1990), this court held that the adequacy of the
interstate commerce nexus was jurisdictional. This court
also held in Stillwell that the bombing of a private home
supplied by natural gas from outside the state had a
sufficient nexus to interstate commerce under § 844(i).
Id. at 1107 (stating that “Congress intended § 844(i)
to reach a private residence which is supplied with
interstate natural gas”). We are constrained to follow
Stillwell as the law of this circuit. There was evidence
of record that the bombings had caused damage to
gas meters and had caused leaks of gas that had trav-
eled through interstate pipelines.
Id. (parallel and record citations omitted). Mr. Prevatte’s
conviction was affirmed, but this court remanded for re-
sentencing. See United States v. Prevatte, 16 F.3d 767 (7th Cir.
1994). After a subsequent appeal and remand, see United
States v. Prevatte, 66 F.3d 840 (7th Cir. 1995), Mr. Prevatte
eventually was sentenced to 44 years’ imprisonment.
In 1997, Mr. Prevatte sought post-conviction relief under
28 U.S.C. § 2255. Specifically, Mr. Prevatte argued that the
Government had withheld favorable evidence from him

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4 No. 94-3360
in violation of Brady v. Maryland, 373 U.S. 83 (1963), and
had violated his due process rights by pressuring his
brother to provide false testimony against him. The district
court denied the motion, and Mr. Prevatte did not appeal.
In November 1999, while incarcerated at a federal deten-
tion center in California, Mr. Prevatte filed a motion for
habeas relief pursuant to 28 U.S.C. § 2241. In his motion,
Mr. Prevatte challenged his conviction on the basis that
the Government had not established a sufficient inter-
state nexus. The United States District Court for the Central
District of California, however, dismissed Mr. Prevatte’s
motion for lack of subject matter jurisdiction. The court
noted that Mr. Prevatte did not challenge the “manner,
location or conditions[ ] of the execution of a sentence,” but
instead contested the legality of his conviction and sen-
tence; consequently, his motion must be brought with the
sentencing court under 28 U.S.C. § 2255. Motion to Recall
Mandate, Ex.4 at 2-3. The court further quoted § 2255 for
the proposition that a petitioner may not seek relief
under § 2241 “ ‘if it appears the applicant has failed to
apply for relief, by motion, to the court which sentenced
him, or that such court has denied him relief, unless it
also appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.’ ” Id. at 3
(quoting 28 U.S.C. § 2255). According to that court, “[t]he
petitioner has not shown that a remedy pursuant to § 2255
is inadequate or ineffective to test the legality of his de-
tention. Thus, the court must dismiss the present petition
for lack of subject matter jurisdiction.” Id.
The Ninth Circuit affirmed the dismissal, but on differ-
ent grounds. It stated:
The challenged conviction and sentence at issue here
were imposed by the Northern District of Indiana. At
the time Prevatte filed his section 2241 petition, how-

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No. 94-3360 5
ever, he was incarcerated in the Central District of
California. Moreover, before the district court ruled
on his petition, Prevatte was then transferred to a fed-
eral prison in Florence, Colorado, where he is currently
incarcerated. Because Prevatte’s § 2241 petition effec-
tively challenges the legality of his underlying convic-
tion and invokes the savings clause under section 2255,
the district court properly recognized that it was with-
out jurisdiction.
Defendant’s Three Supp. Exhibits, Ex.2 at 2. The Ninth
Circuit then remanded “for the limited purpose of determin-
ing if the interests of justice require transfer of Prevatte’s
section 2241 claim, challenging his conviction and sen-
tence under 18 U.S.C. § 844(i), to the district court in
Colorado.” Id. at 3. On July 23, 2002, the Central District
of California denied transfer and dismissed Mr. Prevatte’s
§ 2241 motion.
On December 27, 2001, Mr. Prevatte filed a document
with this court entitled “Appellant Prevatte’s Motion to
Recall Mandate Pursuant to Court’s Inherent Power to
Prevent A Manifest Miscarriage of Justice.” In his motion,
Mr. Prevatte asks this court to recall its mandates, the last
of which was issued in October 1995 after his second ap-
peal. Mr. Prevatte submits that Jones v. United States, 529
U.S. 848 (2000), renders him actually innocent of the crime
for which he was convicted. Mr. Prevatte maintains that,
because the only interstate connection established at his
trial was the injury to a home that received interstate nat-
ural gas, and because Jones held that a private residence
that received interstate natural gas was not “used” in
commerce for purposes of 18 U.S.C. § 844(i), he should be
“set at liberty and discharged from custody.” Motion to
Recall Mandate at 2.

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6 No. 94-3360
II
DISCUSSION
A. Entitlement to Relief Under 28 U.S.C. § 2255
1.
Mr. Prevatte submits that this court has the inherent
authority to recall its mandate to prevent a miscarriage
of justice. However, we previously have determined that
motions, such as the one presented by Mr. Prevatte, cannot
be employed to evade the successive petition restrictions
of 28 U.S.C. § 2255. See Gray-Bey v. United States, 209
F.3d 986, 988 (7th Cir. 2000). In Gray-Bey, the petitioner had
sought and was denied habeas relief under § 2255. Gray-
Bey then sought relief in the district of his incarceration
by way of 28 U.S.C. § 2241. The district court, however,
characterized Gray-Bey’s motion as an attempt to circum-
vent the successive filing rules of § 2255 and transferred
the case to this court for disposition. While the matter
was pending, Gray-Bey’s counsel filed a motion to recall
the mandate of the first disposition of Gray-Bey’s ha-
beas appeal. “By recalling the mandate in the prior case,
counsel contended, we could address the merits of Gray-
Bey’s . . . argument without regard to § 2244(b) and 2255
¶ 8.” Id. at 988. This court rejected the argument. Quoting
the Supreme Court’s decision in Calderon v. Thompson, 523
U.S. 538, 553 (1998), this court stated:
“[A] prisoner’s motion to recall the mandate on the
basis of the merits of the underlying decision can be
regarded as a second or successive application for
purposes of § 2244(b). Otherwise, petitioners could
evade the bar against relitigation of claims presented
in a prior application, § 2244(b)(1), or the bar against
litigation of claims not presented in a prior applica-
tion, § 2244(b)(2). If the court grants such a motion its
action is subject to [the] AEDPA.”

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No. 94-3360 7
1 Mr. Prevatte concedes that he cannot employ § 2255 as a means
of gaining review in this court. See Motion to Recall Mandate
at 8. However, we undertake this analysis as part of a more
searching inquiry to determine whether and how § 2255 is an
inadequate mechanism for Mr. Prevatte to test the validity of
his confinement. This latter inquiry is necessary if we are to eval-
uate whether 28 U.S.C. § 2241 constitutes a viable alternative.
Gray-Bey, 209 F.3d at 988. Consequently, “[b]ecause it
would be proper to recall the mandate only if it is proper
to authorize a second or successive collateral attack,” this
court stated, “the motion is pointless,” and we consid-
ered the merits of Gray-Bey’s successive petition under
§ 2255. Id. Following Gray-Bey and Calderon, we may grant
Mr. Prevatte’s motion only if he is entitled to review and
relief pursuant to 28 U.S.C. § 2255. Therefore, we turn to
§ 2255 to determine if Mr. Prevatte has met the requirements
for filing a successive petition. 1
2.
According to 28 U.S.C. § 2255:
A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate
court of appeals to contain—
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroac-
tive to cases on collateral review by the Supreme
Court, that was previously unavailable.

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8 No. 94-3360
28 U.S.C. § 2255 ¶ 8. Mr. Prevatte does not base his motion
on a claim of new evidence. Consequently, Mr. Prevatte
must demonstrate that he has a right to relief because of
a new rule of constitutional law made retroactive to cases
on collateral review by the Supreme Court. We look then
to the Supreme Court’s decision in Jones v. United States,
529 U.S. 848 (2000), to determine whether this requirement
is met in this case.
In Jones, the Supreme Court addressed the issue of
“[w]hether, in light of United States v. Lopez . . . and the
interpretive rule that constitutionally doubtful construc-
tions should be avoided . . ., 18 U.S.C. § 844(i) applies to
the arson of a private residence; and if so, whether its
application to the private residence in the present case is
constitutional?” Id. at 852 (internal quotation marks and
citations omitted). The Court observed that, in enacting
§ 844(i), “Congress ‘require[d] that the damaged or de-
stroyed property must itself have been used in commerce
or in an activity affecting commerce.’ ” Id. at 854 (quoting
United States v. Mennuti, 639 F.2d 107, 110 (2d Cir. 1981)).
The Supreme Court focused its inquiry on “ ‘the function
of the building itself, and . . . whether that function af-
fects interstate commerce.’ ” Id. at 854 (quoting Mennuti, 639
F.2d at 110). The Court noted that the term “use” is not
equivalent to “affect”; instead, the “qualification is more
sensibly read to mean active employment for commer-
cial purposes, and not merely a passive, passing, or past
connection to commerce.” Id. at 855. A purely residential
dwelling, it determined, is not “used” in commerce in this
manner. Id. at 856.
In Part III of its opinion, the Court discussed how this
construction was “in harmony with the guiding principle
that ‘where a statute is susceptible of two constructions,
by one of which grave and doubtful constitutional ques-

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No. 94-3360 9
tions arise and by the other of which such questions are
avoided, our duty is to adopt the latter.’ ” Id. at 857 (quot-
ing United States ex rel. Attorney Gen. v. Delaware & Hudson
Co., 213 U.S. 366, 408 (1909)). The Supreme Court then
concluded that “[g]iven the concerns brought to the fore
in Lopez, it is appropriate to avoid the constitutional ques-
tion that would arise were we to read § 844(i) 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)).
Jones therefore interpreted § 844(i) not to cover owner-
occupied dwellings because these structures are not “used”
in interstate commerce as that term was employed by
Congress. Furthermore, this interpretation avoided potential
constitutional issues that could have arisen if the statute
covered purely local concerns such as arson.
We believe that it is clear from the language and structure
of the Supreme Court’s opinion that the holding in Jones
does not fit the requirements for § 2255(b). First, the holding
does not state a rule of constitutional law. In the opinion,
the Supreme Court parsed and determined the meaning
of the statutory language in § 844(i); it therefore did not
need to address the issue of constitutionality. See Jones, 529
U.S. at 857-58. Consequently, Mr. Prevatte’s claim for relief
is not based upon a new rule of constitutional law, and he
is not entitled to pursue a second habeas petition under
§ 2255.
B. Alternate Relief Under 28 U.S.C. § 2241
1.
The fact that Mr. Prevatte may not pursue a second § 2255
petition does not necessarily foreclose all relief. Section

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10 No. 94-3360
2255 contains a “savings clause” for petitioners who may be
barred by the successive petition requirements contained
in the statute. The savings clause of § 2255 provides:
An application for a writ of habeas corpus in behalf
of a prisoner who is authorized to apply for relief by
motion pursuant to this section, shall not be enter-
tained if it appears that the applicant has failed to apply
for relief, by motion, to the court which sentenced him,
or that such court has denied him relief, unless it also
appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.
28 U.S.C. § 2255 ¶ 5 (emphasis added). We previously
have discussed the relationship between the savings
clause of § 2255 and the federal habeas statute, 28 U.S.C.
§ 2241:
In general, federal prisoners who wish to attack the
validity of their convictions or sentences are required
to proceed under § 2255. Furthermore, in the over-
whelming majority of cases § 2255 specifically prohib-
its prisoners from circumventing § 2255 and challeng-
ing their convictions or sentences through a habeas
petition under § 2241. There is, however, a recognition
in the statute that it will not apply in a narrow class
of cases. This is the so-called “savings clause” of
§ 2255, which allows prisoners to bring § 2241 peti-
tions if they can show that the § 2255 remedy “is in-
adequate or ineffective to test the legality of [the pris-
oner’s] detention.”
Garza v. Lappin, 253 F.3d 918, 921 (7th Cir. 2001) (quoting
28 U.S.C. § 2255). Thus, Mr. Prevatte may be able to seek
habeas relief pursuant to § 2241, if § 2255 is considered
“inadequate” or “ineffective” as those terms are employed
in § 2255’s savings clause.

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No. 94-3360 11
2 A § 2241 petition, even when sought by way of the savings
clause of § 2255, must be filed “in the district of confinement . . .,
not the district where the case was tried.” Garza v. Lappin, 253
F.3d 918, 921 (7th Cir. 2001).
3 We have the authority to transfer Mr. Prevatte’s action “to any
other such court in which the action or appeal could have been
brought at the time it was filed or noticed . . . .” 28 U.S.C. § 1631;
see also Gray-Bey, 209 F.3d at 989 (invoking § 1631 transfer
authority for a habeas petition under § 2241). At all times rele-
vant to this motion, Mr. Prevatte has been incarcerated in Colo-
rado.
2.
We are not the court with jurisdiction to consider a § 2241
petition on Mr. Prevatte’s behalf. 2 Therefore, as we recog-
nized in a similar context in Gray-Bey, the decision as to
whether § 2255 is “inadequate” and “ineffective” is “not
ours to make.” Gray-Bey, 209 F.3d at 989. Nevertheless,
because we do have the authority to transfer the matter
before us to the court having jurisdiction over a § 2241
petition, 3 we must make a preliminary inquiry as to whether
the case before us is a sufficiently meritorious matter to
warrant such a transfer “in the interest of justice.” 28 U.S.C.
§ 1631.
In our view, a § 2241 petition brought on the basis
of the papers now before us could not be considered friv-
olous. In In re Davenport, 147 F.3d 605 (7th Cir. 1998), we
considered the meaning of “inadequacy” for purposes of
§ 2255. There, we stated that “[a] procedure for post-
conviction relief can fairly be termed inadequate when
it is so configured as to deny a convicted defendant any
opportunity for judicial rectification of so fundamental a de-
fect in his conviction as having been imprisoned for a non-
existent offense.” Id. at 611. In Davenport, one of the peti-

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12 No. 94-3360
tioners, Nichols, sought relief from his conviction for the use
of a firearm in the commission of a drug offense under 18
U.S.C. § 924(c). Nichols appealed his conviction and, after
his conviction was affirmed, sought relief under § 2255
on the basis of ineffective assistance of counsel, which
was denied. Subsequently, the Supreme Court decided
Bailey v. United States, 516 U.S. 137 (1995), in which it
held that “use” for purposes of 18 U.S.C. § 924(c) “does
not include mere possession, as had been the law of this
circuit when Nichols was convicted.” Davenport, 147 F.3d
at 607. Nichols then filed another motion for post-convic-
tion relief styled as an application for a writ of coram nobis
pursuant to 28 U.S.C. § 1651. The district court rejected
the motion as an attempt to circumvent the successive pe-
tition limitations of § 2255. We then were faced with the is-
sue of whether § 2255 was inadequate for Nichols to test
the legality of his confinement:
The question is whether in these circumstances, the
remedy created by section 2255 can be thought adequate
to enable the prisoner to test the legality of his deten-
tion. . . . [W]e think the answer is no. Nichols could not
use a first motion under the section to obtain relief on a
basis not yet established by law. He could not use a
second or other successive motion to obtain that re-
lief because the basis on which he seeks relief is neith-
er newly discovered evidence nor a new rule of consti-
tutional law. It is true that his claim would wash out if
the Supreme Court had made the statutory definition
that it adopted in Bailey applicable only to future cases,
for then Nichols would not have been convicted for a
nonexistent crime; but the Court, consistent with its
usual practice did not do this, and so he has a claim that
he is indeed being held in prison for a nonexistent
crime. It is a claim that he could at no time present in
a motion under section 2255, nor earlier in his direct
appeal.

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No. 94-3360 13
Id. at 610 (internal citations omitted). In conclusion, we
stated that “[a] federal prisoner should be permitted to
seek habeas corpus only if he had no reasonable opportu-
nity to obtain earlier judicial correction of a fundamen-
tal defect in his conviction or sentence because the law
changed after his first 2255 motion.” Id. at 611. We added
three qualifications to this general rule:
The first is that the change of law has to have been
made retroactive by the Supreme Court, as the Court
has now done for Bailey errors by its Bousley decision.
The second is that it must be a change that eludes
the permission in section 2255 for successive motions;
if it does not, if therefore the prisoner is not barred
from filing a successive such motion, then his 2255
remedy is not inadequate and he cannot apply for
habeas corpus. Third, “change in law” is not to be
equated to a difference between the law in the circuit
in which the prisoner was sentenced and the law in
the circuit in which he is incarcerated.
Id. at 611-12.
Similar to Nichols, here Mr. Prevatte has not had an
opportunity to obtain judicial correction of a potential fun-
damental defect in his conviction; Jones was handed down
after he had filed his initial § 2255 motion. Furthermore,
as demonstrated above, the Jones decision is “a change
that eludes the permission in section 2255 for successive
motions,” Davenport, 147 F.3d at 611, because, like Bailey,
it involves statutory, not constitutional, interpretation.
Additionally, Mr. Prevatte does not base his claim for re-
lief on the “difference between the law in the circuit in
which the prisoner was sentenced and the law in the circuit
in which he is incarcerated,” id. at 612; the change on which
Mr. Prevatte relies is a function of the Supreme Court’s
decision in Jones.

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14 No. 94-3360
4 In re Davenport, 147 F.3d 605 (7th Cir. 1998), itself does not
make clear whether it regards Bousley as necessarily limited to
the statute-specific context of firearms offenses under 18 U.S.C.
§ 924 or applicable as well to other statutes. This court’s later
decision in Garza makes no mention of the requirement.
The only potential procedural stumbling block to Mr.
Prevatte’s presentation of his claim under § 2241 is Daven-
port’s requirement that “the change of law has to have
been made retroactive by the Supreme Court, as the Court
has now done for Bailey errors by its Bousley decision.” Id.
at 611. However, it is not at all clear that this require-
ment would be an insuperable impediment for relief.
Even in this circuit, the scope of this requirement is un-
certain; 4 in other circuits, statutory cases such as this one
have been treated as not involving a retroactivity issue.
Rather, the courts have taken the view that a decision of
the Supreme Court that gives a federal criminal statute a
narrower reading than it previously had been given neces-
sarily raises the possibility that an individual previously
convicted under the broader reading now stands con-
victed of activity that Congress never intended to make
criminal. The Chief Justice’s analysis in Bousley is the foun-
dation of this reasoning:
This distinction between substance and procedure is
an important one in the habeas context. The Teague
doctrine is founded on the notion that one of the
“principal functions of habeas corpus [is] ‘to assure that
no man has been incarcerated under a procedure which
creates an impermissibly large risk that the innocent
will be convicted.’ ” [Teague v. Lane,] 489 U.S. [289,] at
312 (quoting Desist v. United States, 394 U.S. 244, 262
(1969)). Consequently, unless a new rule of criminal
procedure is of such a nature that “without [it] the
likelihood of an accurate conviction is seriously dimin-

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No. 94-3360 15
ished,” 489 U.S., at 313, there is no reason to apply the
rule retroactively on habeas review. By contrast, deci-
sions of this Court holding that a substantive federal
criminal statute does not reach certain conduct, like
decisions placing conduct “ ‘beyond the power of the
criminal law-making authority to proscribe,’ ” id., at
311 (quoting Mackey [v. United States, 401 U.S. 667, 692
(1971) (Harlan, J., concurring in part and dissenting in
part)]), necessarily carry a significant risk that a defen-
dant stands convicted of “an act that the law does not
make criminal.” Davis v. United States, 417 U.S. 333, 346
(1974). For under our federal system it is only Congress,
and not the courts, which can make conduct criminal.
United States v. Lanier, 520 U.S. 259, 267-68, n.6 (1997);
United States v. Hudson, 7 Cranch 32 (1812). Accordingly,
it would be inconsistent with the doctrinal underpin-
nings of habeas review to preclude petitioner from
relying on our decision in Bailey in support of his
claim that his guilty plea was constitutionally invalid.
Bousley, 523 U.S. at 620. For instance, in United States v.
Ryan, 227 F.3d 1058 (8th Cir. 2000), the Eighth Circuit re-
lied upon Bousley and determined that, unlike constitu-
tionally based procedural rules, when the Supreme Court
narrows the interpretation of a criminal statute enacted
by Congress, that interpretation may be applied retroac-
tively to § 2255 claims for post-conviction relief. Notably,
the Eighth Circuit, dealing with an initial application for
post-conviction relief, applied this reasoning to the Su-
preme Court’s decision in Jones and held that Jones’ narrow
reading of § 844(i) may be invoked by prisoners seeking
post-conviction relief under § 2255, even though the Su-
preme Court had not declared specifically that Jones was
retroactive.
Similarly the Tenth Circuit allowed a prisoner to in-
voke the Supreme Court’s decision in Bailey v. United

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16 No. 94-3360
5 The district court determined, however, that Tush was not
entitled to relief because he had admitted in his plea agreement
(continued...)
States, 516 U.S. 137 (1995), as a basis for a collateral attack
under § 2255 prior to the Court’s Bousley decision which
rendered Bailey retroactive. United States v. Barnhardt, 93
F.3d 706 (10th Cir. 1995). The Tenth Circuit understood
the Supreme Court’s decision in Davis v. United States,
417 U.S. 333 (1974), to hold that “a petitioner collaterally
attacking his conviction should be given the benefit of case
law decided after his conviction when the conviction was
for an act that the law does not make criminal.” Barnhardt,
93 F.3d at 709 (internal citations and quotation marks
omitted). Consequently, it concluded:
Bailey establishes a new non-constitutional rule of
substantive law which may produce a different result
under the facts of this case than that dictated by prior
law. In other words, actions that were criminal pre-
Bailey may no longer be such. Therefore, we hold that
Bailey applies retroactively to convictions under 18
U.S.C. § 924(c)(1).
Id.
The courts of the Tenth Circuit, the circuit in which Mr.
Prevatte now must seek § 2241 relief, might well apply
the similar reasoning in this case and determine that,
because the Supreme Court’s decision in Jones presents
the possibility that Mr. Prevatte has been convicted of a
crime for activity that Congress did not intend to make
criminal, he is entitled to bring a petition under § 2241.
Indeed, following Barnhardt and Ryan, one district court
in the Tenth Circuit already has taken this approach.
See United States v. Tush, 151 F. Supp. 2d 1246, 1249-50 (D.
Kan. 2001). 5

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No. 94-3360 17
5 (...continued)
that the evidence would show that the targeted church was used
in an activity affecting interstate commerce. See United States
v. Tush, 151 F. Supp. 2d 1246, 1253-54 (D. Kan. 2001), aff’d, 287
F.3d 1294 (10th Cir. 2002).
USCA-97-C-006—8-8-02
Conclusion
Mr. Prevatte has brought a non-frivolous challenge to
his conviction by alleging that, due to an intervening de-
cision of the Supreme Court of the United States that
narrows significantly the statute under which he was
convicted, he stands convicted of having committed an
act that Congress did not intend to criminalize. It also
appears that a court with jurisdiction over the § 2241 peti-
tion would determine that there was no procedural im-
pediment to considering the petition on the merits. Accord-
ingly, we believe that the interests of justice require that
we transfer the matter before us to the United States Dis-
trict Court for the District of Colorado for consideration
as a petition for a writ of habeas corpus under § 2241.
Because we do not have jurisdiction to consider a § 2241
motion based on Jones, we express no opinion on the mer-
its of Mr. Prevatte’s claim that Jones negates his violation
of § 844(i) or entitles him to immediate release.
T RANSFERRED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

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