United States District Court, E.D. Kentucky
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Antonio Hernandez, Jr., is in the custody of the Bureau of Prisons ("BOP") and currently confined in the Federal Correctional Institution located in Manchester, Kentucky. Proceeding pro se, Hernandez has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that in light of post-conviction decisions rendered by the United States Supreme Court, he is actually innocent of the charges for which he was convicted and is currently imprisoned. [R. 1] For these reasons, Hernandez requests immediate release from custody.
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. N. Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011) (citing Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970)). The Court must deny a petition if it plainly appears that the petitioner is not entitled to relief. R. Governing § 2254 Cases 4 (rendered applicable to § 2241 petitions by Rule 1(b)). At this stage, the Court accepts Hernandez's factual allegations as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Because Hernandez lacks counsel, the Court must also evaluate his claims leniently. Id.
PROCEDURAL CRIMINAL HISTORY
In 1994, a federal grand jury indicted Antonio Hernandez, Jr. and four other members of his family on various charges related to the 1989 murder-for-hire of the night watchman at their family business' warehouse in Florida, the burning of that warehouse, and the ensuing fraud on the warehouse's insurer. Specifically, they were charged with (1) a multi-object conspiracy to commit murder-for-hire, arson and mail fraud, in violation of 18 U.S.C. § 371; (2) use of interstate commerce facilities in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958; (3) arson, in violation of 18 U.S.C. § 844(i); (4) eight counts of mail fraud, in violation of 18 U.S.C. § 1341; and (5) using fire to commit a federal felony offense, i.e., mail fraud, in violation of 18 U.S.C. § 844(h). See United States v. Antonio Hernandez, Sr., et al., No. 1:94-cr-262-UU (S.D. Florida 1994).
After a five-week trial, all of the defendants were convicted of various offenses. Hernandez was convicted on Counts 1s, 2s, and 3s of the third superseding indictment. He received a 60-month sentence of imprisonment on Count 1s (conspiracy to commit murder-for-hire and arson), a sentence of life imprisonment on Count 2s (murder-for-hire), and a 120-month sentence of imprisonment on Count 3s (arson). All five Hernandez defendants appealed, but the Eleventh Circuit affirmed their convictions. United States v. Hernandez, 141 F.3d 1042 (11th Cir. 1998).
Shortly thereafter, Hernandez filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255 in the trial court. [ United States v. Antonio Hernandez, Sr., et al., No. 1:94-cr-262-UU (S.D. Florida 1994) at R. 536 therein]. On August 24, 2000, the trial court denied this motion. [ Id. at R. 544 therein]. In March of 2004, Hernandez filed a second § 2255 motion [ Id. at R. 599 therein], which the trial court denied on April 8, 2004. [ Id. at R. 601 therein]. In March of 2007, Hernandez filed a motion for relief from judgment [ Id. at R. 639 therein], which the trial court denied on June 19, 2007. [ Id. at R. 641 therein]. Hernandez appealed the denial of his motion for relief from judgment, but the Eleventh Circuit affirmed the district court's decision on September 11, 2008. United States v. Antonio Hernandez, Jr., No. 07-13231 (11th Cir. September 11, 2008) (unpublished). [ Id. at R. 661 therein].
CLAIMS ASSERTED IN § 2241 PETITION
Hernandez contends that, based on two decisions by the United States Supreme Court that post-date the finality of his conviction of the underlying offenses, he is "actually innocent" of these charges. He further argues that he is entitled to proceed with these claims in a § 2241 petition because § 2255 is inadequate and ineffective for him to test the legality of the convictions. The two cases on which Hernandez relies are Jones v. United States, 529 U.S. 848 (2000) and Rosemond v. United States, ___ U.S. ___, 134 S.Ct. 1240 (2014).
Hernandez first argues that the Supreme Court's decision in Jones establishes that he is innocent of the arson charge and that he was wrongfully convicted for violating 18 U.S.C. § 844(i). In Jones, the Supreme Court reversed Jones' conviction under the federal arson statute, also at issue in Hernandez's case, holding that property occupied and used by its owner as a private residence, rather than a commercial venture, did not fall within coverage of the federal arson statute. The fact that the residence was used in the interstate receipt of natural gas, a mortgage, and an insurance company did not bring it within the reach of the statute.
As to the second prong of his claim, Hernandez argues that in Rosemond, the Supreme Court reinterpreted the meaning of the statute under which he was convicted. Under this new interpretation, Hernandez contends that the government did not establish at trial that he was guilty of aiding and abetting the commission of the underlying conspiracy to commit arson and murder-for-hire.
A. Jones v. United States, 529 U.S. 848 (2000)
In Jones, the defendant tossed a Molotov cocktail into a home owned and occupied by his cousin as a dwelling place for everyday family living. The resulting fire severely damaged the home. Jones was convicted of violating, inter alia, 18 U.S.C. § 844(i), which makes it a federal offense to maliciously damage or destroy by means of fire or an explosive any building used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce. The Seventh Circuit affirmed Jones' conviction. United States v. Jones, 178 F.3d 479 (7th Cir. 1999). The Supreme Court granted certiorari and reversed Jones' conviction for violating 18 U.S.C. § 844(i), holding that an owner-occupied residence that is not used for any commercial purpose does not come within the reach of that statute.
Without reference to any supporting authority, Hernandez states that at the time of his conviction, the government was only required to establish that the destroyed property had a de minimis connection to interstate commerce. Hernandez then argues that the Supreme Court subsequently restricted the reach of § 844(i) by holding in Jones that § 844(i) "covers only property currently used in commerce or in an activity affecting commerce." Jones, 529 U.S. at 859. On that premise, Hernandez claims that in his case, the government did not establish that the destroyed warehouse had a sufficient nexus to interstate commerce. Therefore, ...