Joe A. LOGAN, Sr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, 434 F.3d 503

ROGERS, J., delivered the opinion of the court, in which SILER, J., joined. CLAY, J. (pp. 510-13), delivered a separate concurring opinion. OPINION ROGERS, Circuit Judge. Petitioner, sentenced under the federal arson statute provision for a higher maximum penalty “when death results,” argues in this collateral attack upon his sentence that the jury, not the district judge, should have determined the fact that deaths resulted from the fire that he set. Jones v.

United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), decided during the pendency of petitioner’s direct appeal, held that a sentence under the federal carjacking statute provision for a higher maximum penalty “when death results” required a jury determination that death resulted from the carjacking.

Because no basis has been articulated for distinguishing the effect of the two statutes, Jones requires that, in order for the court to impose a sentence under the federal arson statute provision for a higher maximum penalty “when death results,” the fact of death must be determined by a jury beyond a reasonable doubt. We nonetheless affirm the denial of relief under 28 U.S.C. § 2255 because petitioner never raised the issue, either at trial or on direct review, despite the apparent opportunity to do so at both levels. I.

Logan’s employer and co-defendant Sur-esh Kumar sought to collect the proceeds of an insurance policy on his failing hotel in Bowling Green, Kentucky. To this end, Kumar asked Logan, his maintenance man, to set fire to the hotel in consideration for $3500 and a free place to live for one year. In 1996, Logan set fire to the hotel. The fire destroyed the building, killed four individuals, and seriously injured fifteen others. Kumar filed an insurance claim for more than $4.5 million in losses. See United States v. Logan, Nos. 97-5912, 97-5914, 1999 WL 551353, at *1 (6th Cir. July 19,1999).

During pretrial proceedings for Kumar and Logan’s joint trial, Kumar argued that the deaths in the hotel fire were irrelevant to the arson offense to be considered by the jury and thus that evidence of the deaths was barred by Federal Rules of Evidence 401 and 402. The district court noted the split of authority as to whether the issue of death was an element of the aggravated arson offense or a mere sentencing enhancement.

The court determined that death was not an element and noted that because “the defendant argues that the death certificates are not relevant, defendant Kumar agrees with the government’s position [that death was not an element of the offense].” The court therefore granted Kumar’s motion to keep evidence of the deaths from the jury. Logan brought a motion to exclude a 911 telephone transcript because he argued that testimony regarding the victims did not make it any more or less probable that he set the fire.

In the same order granting Kumar’s motion, the district court granted Logan’s motion on the grounds that the 911 evidence was not probative. After a joint trial with co-defendant Ku-mar, the jury on February 28, 1997, found Logan guilty of (1) conspiracy to commit mail fraud and arson in violation of 18 U.S.C. §§ 371, 844(i), and 1341; and (2) arson of real property used in or affecting interstate commerce in violation of 18 U.S.C. § 844(i). The jury did not decide whether any death or serious bodily injury resulted from the arson. The jury acquitted Logan of mail-fraud.

Logan challenged the Presentencing Report on ten grounds. Logan argues for purposes of his § 2255 motion that three of his ten objections demonstrate that he raised the issue of whether the jury or the judge had the authority to decide whether the deaths occurred. First, Logan argued that he was entitled to a downward departure because he lacked the necessary culpable mental state to kill when he set the hotel on fire. Second, he argued that the court failed to give sufficient consideration to the evaluations submitted by defense experts that indicated Logan was mentally impaired.

Third, Logan argued that the government’s

summary of the evidence, relied upon by the trial court, did “not accurately reflect the defense level of culpability for sentencing purposes.” Pursuant to 18 U.S.C. § 844(i), the district court on July 7, 1997, sentenced Logan to life imprisonment for the arson charges because the arson caused the death of four people. On March 24, 1999, the Supreme Court decided Jones v.

United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), which held that the federal carjacking statute required the jury to decide, as an element of the statutory offense, whether death occurred as a result of the relevant criminal conduct. Logan appealed his sentence to this court, which heard oral arguments on June 16, 1999. This court affirmed his sentence on July 19, 1999. Logan subsequently petitioned the Supreme Court for a writ of certiorari, but the Court denied his petition. Logan filed a motion for collateral relief pursuant to 28 U.S.C. § 2255 on January 16, 2001.

The magistrate recommended that Jones applied to-Logan’s case because Jones was decided before Logan’s case became final. The magistrate also held that Jones announced a new rule of constitutional law. The magistrate nevertheless determined that, under applicable plain-error review, Logan was not entitled to relief because he had not raised the “death issue” in any manner. Moreover, the magistrate noted that “there was no serious dispute in this case that the deaths resulted from the arson of which Mr.

Logan was convicted.” The district court did not adopt the magistrate’s report in full because the court held that Jones did not announce a new rule of constitutional law. Instead, the court held that, because Jones merely provided statutory

interpretation limited to the federal carjacking statute and did not provide a constitutional rule of criminal procedure, Logan could not rely on Jones in his § 2255 motion. The district court accordingly dismissed Logan’s motion. On November 24, 2004, this court, construing Logan’s appeal of the district court’s ruling as an application for a certificate of appealability, permitted him to appeal whether Jones applied to his case and, if so, whether he proeedurally defaulted his Jones claim. We first conclude, contrary to the district court’s determination, that Logan can rely on Jones because Jones’ holding regarding the elements of the federal carjacking statute is pertinent to the correct

interpretation of the federal arson statute. However, we affirm the judgment of the district court to dismiss Logan’s motion because, by failing to argue (at both trial and on direct appeal) the nonconstitutional, nonjurisdictional issue that Jones resolved, Logan proeedurally defaulted his Jones claim. II. The nonconstitutional nature of the Supreme Court’s holding in Jones v. United States does not preclude Logan from relying on that case in his § 2255 motion.

Section 2255 extends to relief based on “laws of the United States.” Jones announced a new rule of statutory law, not a new rule of constitutional law. The petitioner in Jones successfully argued that the jury had to decide, as an element of the offense, whether anyone died in connection with his carjacking. The Court held that, because allowing the judge to determine the fact of whether anyone died as a sentencing factor would “raise serious constitutional questions,” Congress presumptively intended the issue of death to be an element of the statutory offense. Jones, 526 U.S. at 251, 119 S.Ct. 1215.

To quell the dissenters’ fears that the Court’s decision would unsettle state-sentencing practices, the majority stated, “[0]ur decision today does not announce any new principle of constitutional law, but merely interprets a particular federal statute in light of a set of constitutional concerns that have emerged through a series of our decisions over the past quarter century.” Id. at 252 n. 11, 119 S.Ct. 1215; see also United States v.

Lucas, 282 F.3d 414, 420 (6th Cir.2002) (stating that, because the Court in Jones resolved the case on statutory grounds, its constitutional discussion was merely dicta), partially overruled on other grounds by United States v. Leachman, 309 F.3d 377 (6th Cir.2002). Indeed, the Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), announced the rule of constitutional criminal procedure suggested in Jones: the jury must decide any fact that increases the penalty for a crime beyond a statutory maximum.

See Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (stating that Jones merely foreshadowed the holding in Ap-prendi ). The district court, therefore, correctly determined that Jones provided only statutory

interpretation, not a rule of constitutional criminal procedure. The statutory nature of Jones’ holding does not by itself mean that Logan could not rely upon Jones on collateral attack. Petitioners bringing motions under § 2255 can rely on the Court’s decisions grounded in statutory law. Indeed, in Davis v.

United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), the Supreme Court held that “the fact that a contention is grounded not in the Constitution, but in the ‘laws of the United States’ would not preclude its assertion in a § 2255 proceeding.” Moreover, Jones applies to a conviction under the federal arson statute even though Jones was decided under the federal carjacking statute. Both statutes, with similar phrasing and language, describe the substantive crime and then provide different penalties if bodily injury or death occurs during the commission of the crime.

Compare 18 U.S.C. § 844(i), with 18 U.S.C. § 2119. Indeed, the government concedes that “a Jones analysis of 18 U.S.C. § 844(

i) would almost certainly have resulted in a conclusion that the ‘if death results’ finding was an element to be proved to the jury.” In light of the similarity between the statutes’ language and the government’s concession, Logan can properly rely on Jones in his § 2255 motion. III. Although not precluded from relying upon Jones because of the statutory basis for the Jones holding, Logan procedurally defaulted his claim by failing to raise the Jones issue at trial or on appeal.

Logan never raised the issue despite the district court’s recognition that the issue was unsettled at the time of Logan’s trial and despite the fact that the Supreme Court decided Jones before Logan’s oral argument to this court on direct appeal.

Moreover, even if this court were to hold that Logan did not have the opportunity to raise the issue, Logan still cannot rely on Jones because the district court’s error did not cause a “fundamental defect” or a “miscarriage of justice.” Statutory claims brought under § 2255 are proper only when the issues presented in the motion were raised on direct appeal or, if the issue could not be raised, when a miscarriage of justice arises. The Supreme Court held in Sunal v.

Large that a petitioner could not raise a statutory claim for the first time on collateral attack where the resolution of the relevant legal issue “at the time of the conviction[ ] ... had not crystallized.” 332 U.S. 174, 181, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). Later in Davis v.

United States, the Court held that “the appropriate inquiry was whether the claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of justice,’ and whether ‘[i]t ... presents] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” 417 U.S. at 346, 94 S.Ct. 2298 (citations omitted). In Stone v.

Powell, the Court stated that together Sunal and Davis stand for the following rule: (1) petitioners may not raise in collateral attacks statutory issues that could have been raised on appeal, and (2) any statutory claims that could not have been raised on appeal are permissible only if they satisfy the “fundamental defect” test. 428 U.S. 465, 478 n. 10, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). The Stone Court also noted that, while the scope of the writ of habeas corpus has been expanded to include various constitutional claims, there has been no expansion for nonconstitutional claims. See id.

Contrary to Logan’s assertions, Logan’s objections to the Presentencing Report failed to raise the issue of whether the deaths were elements of the statutory offense. His first objection concerned whether he had the requisite mental state to be sentenced at base offense level 43. He argued that he had no intent to kill; instead, he was at most criminally negligent or reckless. His second objection was that the district court improperly excluded expert testimony of Logan’s mental impairment. His third objection was that the district court should not rely on the United States’

summary of the evidence because it failed to reflect his true level of culpability. These objections neither challenged the fact that deaths occurred nor addressed the issue of whether the jury or judge should decide whether deaths resulted from the hotel fire. Therefore, Logan failed at trial to raise the issue decided in Jones. Logan failed to raise the Jones issue at trial despite his knowledge that the issue was unsettled. The issue of whether death was an element of the offense or a mere sentencing factor was unsettled at the time of his 1996-97 trial. Compare United States v.

Triplett, 922 F.2d 1174, 1177 (5th Cir.1991) (holding that the jury must decide as an element of the offense whether deaths occurred), with United States v. Ryan, 9 F.3d 660, 669 (8th Cir.1993), and United States v. Oliver, 60 F.3d 547, 552 (9th Cir.1995) (holding that whether deaths occurred was merely a sentencing factor). In fact, the United States presented a thorough discussion of the unsettled issue in its response to Kumar’s motion to suppress, noted that two circuits disagreed, and correctly informed the district court that the Sixth Circuit had never decided the issue.

The issue, therefore, was neither settled nor overlooked at the time of trial. Even more problematic for Logan is the fact that his co-defendant Kumar argued to exclude evidence of the deaths on grounds of irrelevance. The district court concluded that, for Kumar to challenge the evidence on relevance grounds, Kumar necessarily conceded that the jury was not to decide whether the deaths occurred. Logan remained silent in the face of Kumar’s successful challenge. Logan also failed to raise the Jones issue on direct appeal once Jones was decided.

Because the Supreme Court decided Jones before Logan’s oral argument on direct appeal in this court (and thus before Logan’s case became final), Logan certainly could have relied upon Jones in his appeal to this court and on certiorari to the Supreme Court. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Although Jones was decided on March 24, 1999, over two months before this court heard oral arguments, Logan did not file a motion to cite additional authorities under Fed. R.App. P. 28(

j) or address the issue in his oral argument. Because Logan failed to raise the Jones issue at trial or on direct appeal, Logan procedurally defaulted his Jones claim. IV. Even if this court determined that Logan could not have reasonably contested the issue at trial or on appeal, he still cannot rely on Jones because the district court’s incorrect

interpretation of the statute at trial did not result in a “fundamental defect which inherently results in a complete miscarriage of justice.” Davis, 417 U.S. at 346, 94 S.Ct. 2298. The proper “fundamental defect” inquiry asks whether the “defendant stands convicted of ‘an act that the law does not make criminal.’” Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Davis, 417 U.S. at 346, 94 S.Ct. 2298). Logan cannot satisfy this “fundamental defect” inquiry. Logan’s claim does not present a “fundamental defect” because he is not convicted of

an act that the law does not make criminal. Logan was found guilty of arson. The judge also found that Logan’s arson resulted in the death of others. Jones’ holding, concerning who must find a fact (not what fact must be found), in no way renders Logan’s conduct legal. The substance of the law did not change; only the procedure changed. See Schriro v. Summerlin, 542 U.S. 348, 354, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (holding that a constitutional ruling requiring the jury, instead of the judge, to decide aggravating factors in death-penalty cases was a procedural, as opposed to a substantive, change).

Because Jones does not render Logan’s conduct legal, Logan does not stand convicted of a noncriminal act and cannot satisfy the “fundamental defect” test. Even assuming there was a “fundamental defect,” no miscarriage of justice or other extraordinary factor in this case allows Logan to rely in his motion on the change in statutory

interpretation. In Logan’s case, no party questioned, according to the magistrate, that deaths resulted from the fire. See Derman v. United States, 298 F.3d 34, 46 (1st Cir.2002) (denying petitioner’s § 2255 motion based on a constitutional claim after determining that no reasonable juror could have found in petitioner’s favor regarding an issue that the judge should not have decided). Moreover, that Logan remained silent after the court addressed the exact issue decided in Jones counsels against finding any miscarriage of justice.

Indeed, his successful motion to exclude the 911 telephone transcript was implicitly premised on the fact that the jury had no need to consider evidence regarding the victims’ serious injury or death. Logan has not argued that the judge’s finding prejudiced him in any way. Instead, in light of his motion to suppress, Logan apparently believed that it favored him for the judge, rather than the jury, to decide whether the deaths occurred. Logan, therefore, cannot rely on Jones because no miscarriage of justice or other extraordinary factor exists in this case. y.

For the foregoing reasons, we AFFIRM the district court’s denial of Logan’s § 2255 motion. . Logan also appeal's unable to state a successful claim for ineffective assistance of counsel. Counsel pursued a trial tactic of keeping all evidence of the deaths from the jury. The Court in Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), held that strategic decisions are "virtually unchallengeable.” Counsel’s decision appears reasonable considering that the fact of the deaths was uncontested.