ROBERT M. WHEELER, Petitioner,
JAMES CROSS, Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge.
Before the Court is a Report and Recommendation (R&R) (Doc. 23) Magistrate Judge Philip M. Frazier issued pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and Southern District of Illinois Local Rule 72.1(a). Magistrate Judge Frazier recommends denial of petitioner Robert Wheeler’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1).
On March 7, 2013, the R&R was sent to the parties, with a notice informing them of their right to appeal through the filing of objections within fourteen days of service (Doc. 23-1). Wheeler filed timely objections (Doc. 26), to which respondent has responded at the Court’s request (Doc. 30). Finally, Wheeler has replied to respondent’s response (Doc. 31). Accordingly, the issues are fully briefed and ready for judicial resolution. The Court must undertake de novo review of the objected-to portions of the R&R. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); SDIL-LR 73.1(b); Govas v. Chalmers, 965 F.2d 298. 301 (7th Cir. 1992). The Court may “accept, reject, or modify the recommended decision.” Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999) (citing Fed.R.Civ.P. 72(b)). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues for which the parties make specific objections. Id. However, the Court need not conduct a de novo review of the findings of the R&R for which no objections are made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Instead, the Court can simply adopt these findings after review for clear error. See Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). For the reasons discussed herein, the Court ADOPTS the R&R’s recommendation of denial.
The parties’ dispute centers on the R&R’s legal conclusions. Thus, the Court will not fully recite the factual or procedural background of Wheeler’s underlying criminal conviction, direct appeal, 28 U.S.C. § 2255 motion, and Rule 60(b)(6) motion as it adopts the R&R’s recitation.
In brief, on the morning of April 8, 1996, Wheeler’s wife, Rhonda Wheeler (Rhonda), left her home in Highland Township, Michigan and drove a 1994 Gran Prix over an hour to her place of employment as a legal secretary in Toledo, Ohio. Around 5:00 p.m. that same day, Rhonda entered the 1994 Gran Prix to begin her drive home. Within seconds, an explosion occurred inside the vehicle. After undergoing six major operations over the following nine days, Rhonda died from her injuries (Doc. 1, p. 27; Doc. 17-3, p. 4).
On February 5, 1997, Wheeler pleaded guilty to a six count indictment in the Northern District of Ohio (Doc. 17-2). Counts 1 and 3 charged that Wheeler “willfully, and with a reckless disregard for the safety of human life, did place and cause to be placed an explosive in” and “did damage, disable, and destroy” the 1994 Gran Prix, “which was being used, operated and employed in interstate commerce, thereby causing the death” of Rhonda, in violation of 18 U.S.C. § 33. Count 5 charged that Wheeler “maliciously damaged and destroyed, by means of fire and explosive materials” the 1994 Gran Prix “used in interstate commerce thereby directly and proximately causing the death of Rhonda, ” in violation of 18 U.S.C. § 844(i). Finally, Counts 2, 4, and 6 charged Wheeler with “knowingly using” a “destructive device, during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, ” in violation of 18 U.S.C. § 924(c), connected to Counts 1, 3, and 5, respectively (Doc. 17-1).
On June 11, 1997, the court sentenced Wheeler to life sentences on each count. The concurrent sentences on Counts 1, 3, and 5, were ordered to be served consecutively to the concurrent sentences on Counts 2, 4, and 6, and five years of supervised release (Doc. 1, pp. 29-30). Wheeler filed a timely direct appeal in the Sixth Circuit which affirmed his conviction and sentence. United States v. Wheeler, 168 F.3d 491, 1998 WL 808225 (6th Cir. 1998) (unpublished). On February 22, 2000, Wheeler filed a § 2255 motion which the district court denied in September 2000. Wheeler v. United States, 00-cv-7112 (N.D. Ohio 2000).
III. Law and Application
Wheeler moves the Court to vacate his convictions in light of United States v. Jones, 529 U.S. 848 (2000), decided on May 22, 2000, as he claims it renders him actually innocent of all charges. Jones answered the question of whether § 844(i) covers the arson of an owner-occupied private residence. § 844(i) provides,
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. . . .
18 U.S.C. § 844(i). In Jones, the Supreme Court held that an owner-occupied home did not satisfy the interstate commerce requirement of § 844(i) where the building’s only connection to interstate commerce was its receipt of natural gas from an out-of-state provider, policy coverage underwritten by an out-of-state insurance company, and use as collateral for a loan secured by an out-of-state bank. Jones, 529 U.S. at 850-51. The Jones Court emphasized that the qualifying words “used in” require that the damaged or destroyed property must itself have been used in commerce or in an activity affecting commerce. The Supreme Court endorsed a two-part inquiry that looks first into the function of the property itself and then secondly determines whether that function affects interstate commerce. Jones, 529 U.S. at 854-55.
The R&R recommends denial of Wheeler’s petition as his guilty plea stands as an admission that his conduct satisfied the statutory element of interstate commerce, and further, reasonable jurors could evaluate the use and character of the Gran Prix and conclude that there was a ...