In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 94-3360

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RUSSELL PREVATTE,

Defendant-Appellant.

____________

On Motion to Recall Mandate

____________

SUBMITTED DECEMBER 27, 2001—DECIDED AUGUST 8, 2002

____________

Before CUDAHY, RIPPLE and DIANE P. WOOD, Circuit

Judges.

RIPPLE, 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 transferred 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
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 confederates detonated a pipe bomb in an alley in Hammond, Indiana. 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 Northern Indiana Public Service Company, the provider of natural gas to the adjacent house. The shrapnel from the explosion 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 several months later. Mr. Prevatte was charged with “maliciously damag[ing] or destroy[ing] . . . 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 . . . .”

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 damage and destroy, by means of an explosive, to wit: a pipe

bomb, a building or other real and personal property located 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
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 verdict 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 traveled through interstate pipelines.

Id. (parallel and record citations omitted). Mr. Prevatte’s

conviction was affirmed, but this court remanded for resentencing. 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
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 detention 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 interstate 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 sentence; 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 detention. Thus, the court must dismiss the present petition

for lack of subject matter jurisdiction.” Id.

The Ninth Circuit affirmed the dismissal, but on different 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-
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 federal prison in Florence, Colorado, where he is currently

incarcerated. Because Prevatte’s § 2241 petition effectively challenges the legality of his underlying conviction and invokes the savings clause under section 2255,

the district court properly recognized that it was without jurisdiction. 

Defendant’s Three Supp. Exhibits, Ex.2 at 2. The Ninth

Circuit then remanded “for the limited purpose of determining if the interests of justice require transfer of Prevatte’s

section 2241 claim, challenging his conviction and sentence 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 appeal. 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 natural 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. 
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. GrayBey 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 circumvent 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 habeas appeal. “By recalling the mandate in the prior case,

counsel contended, we could address the merits of GrayBey’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 application, § 2244(b)(2). If the court grants such a motion its

action is subject to [the] AEDPA.”
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 evaluate 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 considered 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 retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.
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 constructions 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 destroyed 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 affects 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 commercial 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-
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 (quoting 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 question 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 owneroccupied 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
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 entertained 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 overwhelming majority of cases § 2255 specifically prohibits prisoners from circumventing § 2255 and challenging 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 petitions if they can show that the § 2255 remedy “is inadequate or ineffective to test the legality of [the prisoner’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.
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 relevant to this motion, Mr. Prevatte has been incarcerated in Colorado.

2.

We are not the court with jurisdiction to consider a § 2241

petition on Mr. Prevatte’s behalf.2

 Therefore, as we recognized 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 frivolous. 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 postconviction 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 defect in his conviction as having been imprisoned for a nonexistent offense.” Id. at 611. In Davenport, one of the peti-
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-conviction 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 petition limitations of § 2255. We then were faced with the issue 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 detention. . . . [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 relief because the basis on which he seeks relief is neither newly discovered evidence nor a new rule of constitutional 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.
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 opportunity to obtain earlier judicial correction of a fundamental 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 fundamental 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 relief 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.
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 Davenport’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 requirement would be an insuperable impediment for relief.

Even in this circuit, the scope of this requirement is uncertain;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 necessarily raises the possibility that an individual previously

convicted under the broader reading now stands convicted of activity that Congress never intended to make

criminal. The Chief Justice’s analysis in Bousley is the foundation 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-
No. 94-3360 15

ished,” 489 U.S., at 313, there is no reason to apply the

rule retroactively on habeas review. By contrast, decisions 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 defendant 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 underpinnings 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 relied upon Bousley and determined that, unlike constitutionally based procedural rules, when the Supreme Court

narrows the interpretation of a criminal statute enacted

by Congress, that interpretation may be applied retroactively 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 Supreme 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 Supreme Court had not declared specifically that Jones was

retroactive. 

Similarly the Tenth Circuit allowed a prisoner to invoke the Supreme Court’s decision in Bailey v. United
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 preBailey 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
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 decision 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 petition would determine that there was no procedural impediment to considering the petition on the merits. Accordingly, we believe that the interests of justice require that

we transfer the matter before us to the United States District 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 merits of Mr. Prevatte’s claim that Jones negates his violation

of § 844(i) or entitles him to immediate release.

TRANSFERRED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit