NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0949n.06 No. 10-3226 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

REGI NAL D PURNEL L , Petitioner-Appellant,

v.

UNI TED STATES OF AMERI CA, Respondent-Appe llee. ) ) ) ) 

### ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED S TATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O

Be fore : GUY a

nd CL AY, Circuit J udg es; HOOD , District J udg e. * DENI SE PAGE HOOD, District J udg e. De fenda nt Re g inald Purnell appea ls the denial of his motion for relief from judgme nt pursuant to Fe dera l Rule of Civil Procedur e 60(b), seeking to reope n his 28 U.S.C. § 2255 motion. On appea l, Purnell arg ues that he was actua lly innocent of robber y in violation of the Hobbs Act, 18 U.S.C. § 1951, to which he enter ed a plea of g uilty

. For the re asons stated be low, we AF F IRM the district court’s r uling. I. On Aug ust 16, 2005, a confide ntial informant (CI ) with the Bur eau of Alcohol, Tobac co, and Fire arms (ATF ) contac ted codef endant Z echa

riah Ba rber to arr ang e purcha se of a firea rm and

a quarte r ounce of cra ck coca ine. T h e CI had purcha sed cra ck coca ine from Ba rber on other

* T h e H o n o r a b l e D e n i s e P a g e H o o d , U n i t e d S t a t e s D i s t r i c t J u d g e f o r t h e E a s t e r n D i s t r i c t o f M i c h i g a n , s i t t i n g b y d e s i g n a t i o n .No. 10-3226, Purcell v. U SA Pag e 2

occa sions. That evening , Ba rber and Purnell arr iv ed at the CI ’s residenc e. Purnell pulled a firea rm fr o m his waistband and pointed it at the CI ’s head. Ba rber took $650 of pre- rec orded g overnme nt funds from the CI , which wa s provided to the CIto purcha se drugs and a firear m. Ba rber and Purnell reque sted additional money and order ed the CI upstairs wher e they bound the CI ’s hands and feet. Purnell and B arbe r then we nt downstairs and took var ious items from the CI ’s residenc e, including dvds, cash, a wallet, a social secur ity car d, a birth cer tificate, and a Play Station controller. The e ntire incident wa s videotaped by the ATF

. Upon l ea v i ng the residenc e, Purnell and Ba rber fled by car and wer e pursued by ATF ag ents and members of the Columbus Police Depa rtment. Two small bag g ies wer e tossed from the car during pursuit. The contents of these bag g ies later tested positive for coca ine. Ba rber and Purnell were arr ested a

nd taken into custody

. On September

15, 2005, the g rand jury returne d a five-c ount indictment ag ainst Purnell and Ba rber

. P u rn el l wa s charg ed with two counts of possession of more than five g rams of

coca ine with the intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and (b)( 1)(iii), 846 and 18 U.S.C. § 2, and one count of brandishing a firear m in relation to a drug

traff icking offe nse. The g overnme nt prov id e d a s u p e r s e ding information on November 9, 2005, char g ing Purnell with robber y in violation of 18 U.S.C. §§ 1951 and 2, and brandishing a firea rm in rela tion to a crime of violence, 18 U.S.C. § 924(c) (1)( A). Purnell pled g uilty to b o t h co u n t s in the superse ding information. Ba

rber also acc epted a plea. The district court sentenc ed Purnell to a t er m of 64 months im prisonment for r obbery and 84 months, the mandatory minimum , for brandishingNo. 10-3226, Purcell v. U SA Pag e 3

a firea rm to run consec utively

. The district court also sentenc ed him to a term o f t hree to five y ear s supervised r elea se to run conse cutively . On appe al, this Court affirmed the sentenc e. Subsequent to this appea l, Purnell filed a number of motions with the district court. Purnell filed an a

mended motion to vacate, set aside, or corr ect se ntence pursuant to 28 U.S.C. § 2255 on November 18, 2007. Purnell argued in this motion that his counsel was ineffe ctive for failing to raise the issue of whether Purnell’s conduct was sufficie nt to satisfy jurisdiction under the Hobbs Act. Purnell further contende d that he was actua lly innocent of robber y under the Hobbs Act. Be cause he did not have the requisite intent since he did not know that the victim was

a CI or about his co-defe n d an t ’s previous interac tions with the CI

. He asser ted that he was “coa ched and coer ced into pleading g uilty to a crime that i s not cover ed by ” 18 U.S.C. §§ 924(c) (1)( A)(ii) and 2. Purnell argued that he should not be allowed to plead to char g es that

are not cover ed by

statute. Purnell reque sted to amend his motion to add a claim that the di strict court lacke d jurisdiction. He later moved to supplement his motion to argue that his counsel’s ineffe ctiveness resulted in double jeopar dy , a violation of the due proce ss rig ht to a fair trail, and violation of the rig ht to be informed of the char g es ag ainst him. He later reque sted that the court allow him to add

a claim for judicial misconduct. The mag istrate judge denied Purnell’s reque st to add claims for lack of subject matter jurisdiction, double jeopar dy , and judicial misconduct beca use the one-y ear statute of limit ations had expired on the claims. The mag istrate judge allowed Purnell to amend his motion to include the claims that his counsel’s ineffe ctiveness denied him the rig ht to fair trial and rig ht to be informed of char g es ag ainst him related ba ck to the initial motion t o vacate.No. 10-3226, Purcell v. U SA Pag e 4

I n response to Purne ll’s motion, the g overnme nt provided the a ffidavit of Alison Clar k, Purnell’s trial attorney

. She indicated that Purnell’s case was difficult due to the exis tence of videotape evidenc e. She soug ht to secur e the shortest sentenc e possible, which she believed

wo u l d b e the robber

y under the Hobbs Act and brandishing a firea rm. I n return for Purnel l

ac ce p t ing a g uilty plea, the Gover nment did not pursue additional char g es ag ainst h i m an d Purnell’s sentenc e exposure was reduc ed by three levels. The mag istrate judge found“[t] he rec ord indicate[d] that counsel made a rea sonable strateg ic decision, afte r investigation, that petitioner fac ed probable conviction under the Hobbs Act, and that a g uilty plea to that char g e, as opposed to the drug char g es, would result in a less sever e sentenc e.” The mag istrate judge also deter mined that Purnell’s actua l in n o cence claim was without merit beca use the rec ord showed Purnell’s g uilty plea was knowing , intelligent, and voluntary

. On J une 4, 2009, the district court acc epted the mag istrate judg e’s report and r ecommendation, over Purnell’s objec tion, and dismiss ed the

case . Purnell then filed a motion to dismiss arguing that t h e d i s t ri ct court did not have j urisdiction over the g eog raphic are a where the offe nse t ook place

. I n denying the motion , t h e district court noted that 18 U.S.C. § 323 1 gives fede ral courts jurisdiction over “all offe nses ag ainst the l aws of the Unit ed S tates” and Article I , section 8 of the U nited States Constit ution allows Congr ess to cre ate and punish cr i m es reg ardle ss of wher e they wer e committed. The district court conc luded t hat P urnell’s plea confe rre d jurisdiction. The district court also noted that Purnell’s claim was more appropr iate for a section 2255 motion and that a succe ssive section 2255 motion required c onsideration by this Court.No. 10-3226, Purcell v. U SA Pag e 5

Purnell next filed a Motion for Re lief from J udg ment pursuant to Fe dera l Rule of C ivil Procedur e 60(b). There in Purnell argued that the Assistant United States Attorney (AUSA) had committed fra

ud on the district court by wrong fully invoking subject matter jurisdiction. Purnell noted that leave to amend his section 2255 motion was reque sted befor e the action was dismiss ed and should have been fre ely g iven. The district court found that t h es e argume nts “mirror [ed] those made in Purnell’s Motion to Dismiss for L ack of J urisdiction” and de nied the motion. Purnell filed a motion for a cer tificate of appea lability on Fe bruar y 22, 2010. The district court denied Purnell’s reque st noting that rea sonable jurists would not debate whether the denial of Purnell’s Rule 60(b) motion was proper and that appea l of the denial of the s ec t i on 2255 motion was untimely

. We g rante d Purnell a cer tificate of appea labilit y . This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291. II. A. W e re view the district court’s denial of Purnell’s Rule 60(b) motion for abuse of discretion. W

orkman v. Bell , 484 F.3d 837, 839–40 (6th Cir. 2007). The district cour t’s ruling 1 should be aff

irmed unless there is “ a definite a nd firm conviction that the trial court committed

a clea r err or of judgme nt.” Logan v. Dayton Hudson Corp ., 865 F.2d 789, 790 (6th Cir. 1989) (citing Balani v

. INS , 669 F.2d 1157, 1161 (6th Cir. 1982) ). Such err or occur s when the district

P u r n e l l p r o v i d e s t h e C o u r t w i t h t h e s t a n d a r d o f r e v i e w f o r a d e n i a l o f a s e c t i o n 2 2 5 5 m o t i o n a n d 1 t h e s t a n d a r d o f

r e v i e w f o r d e n i a l o f

a R u l e 6 0 ( b ) m o t i o n . T h i s C o u r t d i d n o t s p e c i f y t h e i s s u e c e r t i f

i e d f o r a p p e a l ; t h e c e r t i f

i c a t e o f a p p e a l a b i l i t y w a s i s s u e d a f t e r t h e d i s t r i c t c o u r t e n t e r e d i t s o r d e r d e n y i n g P u r n e l l ’ s R u l e 6 0 ( b ) m o t i o n . A n a p p e a l f r o m t h e o r d e r d e n y i n g t h e s e c t i o n 2 2 5 5 m o t i o n w o u l d b e u n t i m e l y . F e d

. R

. A p p . P

. 4 ( a ) ( 1 ) ( B ) ( I n a c i v i l c a s e “ [ t ] h e n o t i c e o f a p p e a l m a y b e f i l e d b y a n y p a r t y w i t h i n 6 0 d a y s a f t e r e n t r y o f t h e j u d g m e n t o r o r d e r a p p e a l e d f r o m i f o n e o f t h e p a r t i e s i s . . . t h e U n i t e d S t a t e s ” )

.No. 10-3226, Purcell v. U SA Pag e 6

court applies th e i n correct leg al standard, misapplies the leg al standard, or relies on clea rly

err oneous finding s of fac t. In re Fe rro Corp. Derivative Liti gation , 511 F.3d 611, 623 (6th Cir. 2008). B. Purnell argues that his conduct did not violate fede ral law beca use the Hobbs Act does not

cover the robber

y of an individual in a private home. He contends that the district c ourt did not addre ss this argument below and, there fo re, the district court err ed in denying his Rule 60(b) motion. The g overnme nt counter s that Purnell’s Rule 60(b) motion was not a succe ssive motion and was proper ly denied by the district court. The g overnme nt also asser ts that the district court considere d Purnell’s actua l innocenc e arg ument and the Rule 60(b) motion did not raise a claim of ac tual innocenc e. Fe dera l Rule of Civil Procedur e 60(b) allows a party to seek relief from a district court’s final judgme nt or order for a limit ed number of rea sons: (1) mistake, (2) newly discovere d evidenc e, (3) fra

ud, (4) void judgme nt, (5) satisfied, discharg ed or rele ased judgme nt, or (6) any other rea son that justifies relief

. Fe d. R. Civ. P. 60(b). A true Rule 60(b) motion does not attack “the substanc e of the fede ral court’s resolution of a claim on the m erits, but some defe ct i n the integ rity of the fede ral habea s proce eding s.” Gonzales v. Crosby , 545 U.S. 524, 532 (2005). I n a habe as ca se, when “[a] Rule 60(b) motion . . . attempts ‘to add a new g round for relief ‘[it] is eff ectively a motion to vacate , set aside, or corr ect the se ntence , and thus should be considered

a § 2255 motion.” In re Nailor , 487 F.3d 1018, 1022 (6th Cir. 2007) (citing Gonzales , 545 U.S. at 532). A Rule 60(b) motion that attacks the resolution of a former claim on the merits will alsoNo. 10-3226, Purcell v. U SA Pag e 7

be considere d a section 225 motion. Id. at 1023. A s ucce ssive motion to vacate that is simply labeled a s a Rule 60(b) motion should be transf err ed to this Court. 28 U.S.C. § 2244(b)( 3); 28 U.S.C. § 1631; In re Sims, 111 F.3d 45, 47 ( 6th Cir. 1997). I n the Rule 60(b) motion, Purnell relied on subsection (3) to arg ue that t h e AUSA perpe trated a fra

ud on the district court by wrong fully

invoking subjec t matter jurisdiction. He

asser ts that a Rule 60(b) motion is also the proper mecha nism to reque st relief when the district court has failed to addre ss a habea s claim. See Spitznas v. Boone , 464 F.3d 1213, 1225 (10th Cir. 2006) (noting that “[t] he defe ct lies not in the district court’s resolution of the merits

. . . , but in its failure to make any ruling on a claim that was proper ly prese nted”) (citing Gonzales, 545 U.S. at 532). Howeve r, Purnell’s Rule 60(b) motion does n o t argue that the district court failed to addre ss the actua l innocenc e claim in its resolution of the section 2255 motion. Rather, Purnell arg ued that his reque st to amend the section 2255 motion to include a subject matter jurisdiction challeng e was improperly denied. He contende d that “the evidenc e clea rly demonstrate[d] that 2

n o district court of the United States [had] valid statutory jurisdiction over any offe nse u n d er either Titles 18 or 21.” He further claimed that the AUSA fra uded the district court by prosec uting the c rime in the abse nce of jurisdiction. Even a liberal rea ding of the section 2255 motion is not indicative of an actua l innocenc e arg ument. See Martin v. Ove rton , 39 1 F.3d 710, 714 (6th Cir. 2004) (noting that “libera l construction [of a pro se petitioner’s pleading s] does not require a court to conjure alleg ations on
Purnell asked that the district c ourt “set a side the [section 2255 motion] judgme nt . . . ; 2 permit the re cord to be enlar g ed by the amendme nt sought . . . ; and r eac h the merits soug ht to have be en made part of this ca se, that would conc lusively demonstrate the fra

ud perpe tuated by the Assistant United States Attorney .”No. 10-3226, Purcell v. U SA Pag e 8

a litigant' s behalf

”) (quoting Erwin v. Edwards , 22 Fe d.Appx. 579, 5 80 (6th Cir. 2001)). I t appea rs that Purnell was attempting to argue that the district court did not have jurisdiction over his claim beca

use the offe nse was not committed on fede ral land. There was no new substantive claim; Purn el l had already challeng ed the district court’s jurisdiction in his previous mot ion to dismiss

. Purnell’s claim attacked th e i n t egr i t y of t he criminal proce eding s due to the AUSA’s decision to prosec ute, knowing that the district court lac ked jurisdiction. The district court denied Purnell’s Rule 60(b) motion as a succe ssive p et ition under 28 U.S.C. § 2244(b)( 3) beca use it had alre ady addre ssed his claim when it denied his motion to dismiss for lack of subject matter jurisdiction. Although the district court found that the motion

was succe ssive, which would have require d it to tr an s fe r t h e motion to this Court, the district court did not abuse its discretion. There could be no fra ud based on the AU SA’s wrong ful

asser tion of subject matter jurisdiction when t h e d i s t ri ct court alre ady deter mined that it had jurisdiction based on Purnell’s violation of three fede ral statutes. C. On appe al, Purnell ref

ashions his argument below into a cha lleng e of the g overnme nt’s ability to me et the jurisdictional element of the Hobbs Act. Nowher e in the Rule 60(b) motion does Purnell argue or sug g est that he was actua lly innocent beca use the jurisdictional element of the Hobbs Ac t was not met. Gene rally , the Court does not co n sider arguments that are raised for the first time on appea l. See United States v. Ellison, 462 F.3d 557, 560 (6th Cir. 2006)

. Howeve r, considering Purnell’s argument, the Hobbs Act punishes an individual who, “in any way or deg ree obstructs,No. 10-3226, Purcell v. U SA Pag e 9 delay s, or aff

ects commerc e or the movement of any article or comm o d i t y i n co mmerce , by robber y or extorti on or attempts or conspires so to do, or commits or threa tens phy sical violence to any person or proper

ty in further ance of a plan or purpose to do any thing in violati on . . .” 18 U.S.C. § 1951(a)

. The Hobbs Act require s t h at the g overnme nt prove “two elements: (1) interfe renc e with interstate; (2) in the course of a substantive criminal act.” United States v. Ostrander , 411 F.3d 684, 691 ( 6th Cir. 2005). When the robber

y involves a private individual and n o t a b u s iness enter prise, the g overnme nt must show that there is a substantial connec tion betwee n the private individual and the business eng ag ed in interstate commerc e. United States v. W ang , 222 F.3d 234, 239–40 (6th Cir. 2000). A substantial connec tion may be shown if there was a larg e num b er of victims, a larg e sum of money involved, or the d ef endant was motivated by or knew of the victim’s

connec tion to int erstate commerc e. Id. Citi ng W aucaush v. United States , Purnell urg es the Court to set as ide his g uilty plea. 380 F.3d 251 (6th Cir. 2004). I n W aucaush , this Court set aside the petitioner’s g uilty plea to a RI CO char g e beca

use t he rec ord did not support an interstate connec tion. 380 F.3d at 256–58 (finding that the enter

prise “wa s intrastate, noneconomic , and without substantial eff ects on interstate commerce ”). W e noted that the gover nment failed to provide any evidenc e that there

was an economic component to the crime char g ed. Id. at 257 (“Eve n if we assume that some of the people that the CFP killed wer e drug -dea lers, we have no evidenc e that they were dealing drug s or car

ry ing drug money when they wer e killed, or that their deaths signific antly disrupted the interstate marke t for drug s.”). Ba sed on the lack o f ev i dence that the enter prise aff ecte dNo. 10-3226, Purcell v. U SA Pag e 10

in te r s ta te c ommerce , we conclude d that the defe ndant was “ac tually innocent of violating RI CO.” Id. at 258. Her e, Purnell’s re liance on W aucaush does not dictate the same result. Purnell went to the CI ’s home under the g uise of an economic transac tion: the sale and purcha se of a firea rm and

coca ine. The sale of a firea rm has been found to a ffe ct interstate commerc e. See United States

v. Fish , 928 F.2d 185, 186 (6th Cir. 1991). The sale of coca ine invariably aff ects i n t er s t ate

commerc e. See United States v. Cecil , 615 F.3d 678, 691–692 (6th Cir. 2010); Ostrander , 411 F.3d a t 692. Purnell and his co-de fenda nt went t o t h e C I ’s home for the sole purpose of purcha sing drug s and a firea

rm. I n anticipation of this transac tion, the CI h ad secur ed pre- rec orded g overnme nt funds or “buy money .” I t could be assumed that Purnell knew that the CI would have money to complete the transac tion. I nstead of compl et i n g the drug transac tion, Purnell brandished a firea

rm and ro b b ed t h e CI of the “buy money ” and other items. The robber y signific antly depleted the CI ’s assets to purcha se coca ine. See W aucaush , 380 F.3d at 257 (noting that there was no evidenc e that the g ang char g ed with RI CO activity killed dr ug -dea lers, or that those individuals killed wer e car ry ing dru g m o n ey when they wer e killed); United States v. Turner , 272 F.3d 380, 387 (6th Cir. 2001) (finding that the g overnme nt h ad failed to show de minimis eff

ect on interstate commerc e when it could not demonstrate that the b u s in ess robbed was actively eng ag ed in i nterstate commerc e or that the robbery would have hindered the business’ ability to eng ag e in interstate commerc e); W ang , 222 F.3d at 240 (finding jurisdictional nexus not satisfied when defe ndant “robbe d private citizens in a private residenc e of approximately $4,200,No. 10-3226, Purcell v. U SA Pag e 11

a mere $1,200 of which belong ed to a restaur ant doing business in interstate commerc e”)

. Unlike the def endants in the a

bove-me ntioned case s, the purpose of the meeting , albeit a g uise, was to eng ag e in a drug and firea rm trans ac t i o n . This transac tion was only thwarte d by Purnell’s commission of the robber y . Purnell’s act deprive d the CI of his “b u y m o n ey ” to make a drug transac tion involving interstate commerc e. The parties in W ang , Turner , and W

aucaush wer e not broug ht toge ther based on an economic transac tion. In W ang and Turner there was no connec tion to interstate commerc e beyond the money taken

. Purnell’s very rela tionship with the CI was based solely on interstate commerce and an economic transac tion. This jurisdictional n ex us is sufficie nt to defeat Purnell’s actua l innocence claim Howeve r, the Court need not deter mine whether there was actua lly a sufficie nt jurisdictional n e xu s b e tw e e n th e v ic ti m a nd interstate commerc e beca use Purnell acc epted a g uilty plea. Unlike the defe ndants in W ang and Tur n er , Purnell did not proce ed to trial and the g overnme nt did not prese nt evidenc e to demonstra t e a jurisdictional nexus. “A voluntary and unconditional g uilty plea waives all non-jurisdictional defe cts in the proce eding s.” United States

v. Ormsby , 252 F.3d 844, 848 (6th Cir. 2001). To challeng e jurisdiction, Purnell must show that the fa ce of the i ndictment did not char g e the elements of a federa l offe nse. Turner, 272 F.3d at 389–90 (finding that defe ndant had admi t t ed the fac ts supporting the indictment and had, there fore , waived his challeng e to the g overnme nt’s failure to p ro v e a connection betwee n the crime and interstate commerc e when he acc epted an unconditional g uilty plea)

. Under the Hobbs Act, “the failure of the g overnme nt to prove a nexus betwee n the crime and interstate commerc eNo. 10-3226, Purcell v. U SA Pag e 12 is not jurisdictional in the sense that it deprive s the district court of subject matter jurisdiction.” Id. at 390. Pu rn ell does not argue that the indictment itself was insufficient, but rathe r that his conduct did not form the basis o f a fe dera l crime. At the arraig nment, the facts supporting the superse ding information wer e rea d into the rec ord and the district court asked Purnell whether he

acc epted the fac ts. Purnell did not object and he plead g uilty to the char g es. Purnell “admitted the fa ctual basis for jurisdiction as char g ed in his indictment . . . [ and, ther efor e, his] challeng e is nonjurisdictional and has bee n waived.” Turner, 272 F.3d at 390. III. For the rea sons stated above, we AF F IRM the district court’s denial of the Rule 60(b) motion.