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Wheeler v. Cross

United States District Court, S.D. Illinois

July 7, 2014

ROBERT WHEELER, No. 42184-060, Petitioner,
JAMES CROSS, Respondent.


DAVID R. HERNDON, District Judge.

Petitioner Robert Wheeler is currently incarcerated in the Federal Correctional Institution at Greenville, Illinois. He is serving two consecutive life sentences after pleading guilty in 1997 to a six-count indictment for killing his wife with a car bomb. United States v. Wheeler, Case No. 96-cr-732 (N.D. Ohio), aff'd 168 F.3d 491 (6th Cir. 1998). He planted the explosives in his wife's car in Michigan (where they both resided), before she drove to her job in Toledo, Ohio. The bomb went off seconds after she got in her car to drive home at the end of her work day. She died several days later from injuries caused by the explosion.


Wheeler's convictions primarily involved three federal statutes. Counts 1 and 3 charged that he "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" his wife's vehicle, "which was being used, operated and employed in interstate commerce, thereby causing the death" of his wife, in violation of 18 U.S.C. § 33. Count 5 was for a violation of 18 U.S.C. § 844(i), in that Wheeler "maliciously damaged and destroyed, by means of fire and explosive materials" the vehicle "used in interstate commerce thereby directly and proximately causing the death" of his wife. Counts 2, 4, and 6 charged him 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), in reference to Counts 1, 3, and 5, respectively (Doc. 1, pp. 18-20; see also Doc. 33 in Wheeler v. Cross, Case No. 12-cv-618-DRH (S.D. Ill. May 31, 2013)). He received life sentences for each count, with the concurrent sentences on Counts 1, 3, and 5 ordered to be served consecutively to the concurrent life sentences for Counts 2, 4, and 6 (Doc. 45 in criminal case).

After the conclusion of Wheeler's direct appeal, he filed a timely § 2255 motion on February 22, 2000. It was denied in September 2000. Wheeler v. United States, Case No. 00-cv-7112 (N.D. Ohio 2000).

On May 14, 2012, Wheeler filed a habeas petition in this Court pursuant to 28 U.S.C. § 2241, Wheeler v. Cross, Case No. 12-cv-618-DRH. In that case, petitioner, represented by counsel, claimed that under Jones v. United States, 529 U.S. 848 (2000), decided on May 22, 2000, he was actually innocent of all charges because his wife's car had not been used in interstate commerce. Jones held that the property destroyed or damaged in violation of 18 U.S.C. § 844(i) must itself have been used in commerce or in an activity affecting commerce. In Jones, the property in question was an owner-occupied home that received gas from an out-of-state provider, was insured by an out-of-state company, and was collateral for a loan secured by an out-of-state bank. The Supreme Court found that these "interstate" connections were insufficient to bring the home within the ambit of § 844(i), which covers property "used" in interstate commerce.[1] Wheeler argued that his wife's car was likewise not "used in commerce or in an activity affecting commerce, " thus his convictions should not stand.

After considering the government's response to Wheeler's petition in Case No. 12-cv-618-DRH, the Report and Recommendation of the Magistrate Judge, petitioner's objections, and the subsequent responses, this Court denied the § 2241 petition. The undersigned Judge concluded that Wheeler failed to demonstrate that the argument he raised was foreclosed to him during his direct appeal or in his § 2255 motion (Doc. 33 in Case No. 12-cv-681-DRH, May 31, 2013). Further, his wife's use of her automobile on several occasions to drive from Michigan to her job in Ohio, earning income which she would then bring back to Michigan, showed that the car destroyed by Wheeler was actively used for commercial purposes, and that this use affected interstate commerce. Contrary to Wheeler's arguments, the car's function and its use in relation to interstate commerce brought it squarely within the definition of property covered under 18 U.S.C. § 844(i). See Jones v. United States, 529 U.S. 848, 849 (2000). Petitioner's claims were dismissed with prejudice.

The Seventh Circuit affirmed this Court's judgment, noting that Wheeler indeed could have presented his legal theory, including the argument based on Jones, in his original § 2255 motion (Doc. 50 in Case No. 12-cv-618-DRH; Appeal No. 13-2998). The appellate court further agreed that petitioner's argument failed on the merits, because his wife's car "was actively used to affect interstate commerce." Id.

The Petition

Wheeler's new § 2241 petition again asserts that he is actually innocent of his crimes and that § 2255 is inadequate or ineffective to address his five new claims. First, he argues that under Castillo v. United States, 530 U.S. 120 (2000), his sentencing for Counts 2, 4, and 6 was improper. He was charged with violations of 18 U.S.C. § 924(c)(1), but was sentenced pursuant to § 924(i)(1). Under Castillo, he claims that the § 924(i)(1) penalty enhancement to death or life imprisonment was a separate offense that must be charged and proven beyond a reasonable doubt (Doc. 1, pp. 3-5). Second, he raises another challenge based on Jones v. United States, 529 U.S. 848 (2000), this time focusing on the interstate commerce language in 18 U.S.C. § 33 (the basis for Counts 1 and 3) (Doc. 1, pp. 6-10). Wheeler's third claim is similar to his first, arguing that the life-sentence enhancement to 18 U.S.C. § 33, which is found at 18 U.S.C. § 34, is an element of a separate aggravated offense with which he was not charged. Fourth, he claims that as applied to him, 18 U.S.C. § 33 and § 844(i) violate the Tenth Amendment, federalizing what should have been a "localized state crime" (Doc. 1, pp. 12-14). Finally, he argues that 28 U.S.C. § 2255(e) is unconstitutional as applied to him, if this Court deems that § 2255 provided him with an adequate remedy at law (Doc. 1, p. 15).

This case is now before the Court for a preliminary review of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. Rule 4 provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus cases, such as this action under 28 U.S.C. § 2241. For the reasons below, the Court concludes that the petition must be dismissed pursuant to Rule 4.


As a general matter, "28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide federal prisoners with distinct forms of collateral relief. Section 2255 applies to challenges to the validity of convictions and sentences, whereas § 2241 applies to challenges to the fact or duration of confinement." Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012) (citing Walker v. O'Brien, 216 F.3d 626, 629 (7th Cir. 2000). See also Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998).

Under very limited circumstances, a prisoner may employ § 2241 to challenge his federal conviction or sentence. 28 U.S.C. § 2255(e) contains a "savings clause" which authorizes a federal prisoner to file a § 2241 petition where the remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). See Hill, 695 F.3d at 648 ("Inadequate or ineffective' means that a legal theory that could not have been presented under § 2255 establishes the petitioner's actual innocence.'") (citing Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002). See also United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). The fact that petitioner may be barred from bringing a second/successive § 2255 petition is not, in itself, sufficient to render it an inadequate remedy. In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998) (§ 2255 limitation on filing successive motions does not render it an inadequate remedy for a prisoner who had filed a prior § 2255 motion). Instead, a petitioner under § 2241 must demonstrate the inability of a § 2255 motion to cure the defect in the conviction. "A ...

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