Ballinger, Jay S. v. United States ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1547
JAY SCOTT BALLINGER,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP 01-1750-C-B/F—Sarah Evans Barker, Judge.
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ARGUED APRIL 15, 2004—DECIDED AUGUST 11, 2004
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Before FLAUM, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. From 1994 to 1999 Jay Scott
Ballinger and his girlfriend Angela Wood traveled around
the United States setting at least 26 churches on fire in eight
different states. Ballinger was ultimately charged with
offenses in 11 different federal districts and his appointed
counsel negotiated a plea agreement in which all of the
charges except those from the Northern District of Georgia
were transferred to the Southern District of Indiana. In
July 2000 Ballinger pleaded guilty to six counts of arson
under 18 U.S.C. § 844(i), 20 counts of intentionally destroying
religious real property under § 247(a), two counts of con-
2 No. 03-1547
spiracy to commit arson, and two counts of the use of fire in
the commission of a felony, § 844(h). He did not appeal his
conviction but instead filed a motion under 28 U.S.C. § 2255arguing that his plea was involuntary and that his attorney
was ineffective. The district court concluded that Ballinger
procedurally defaulted those arguments by failing to raise
them in a direct appeal. Although the court was correct that
Ballinger procedurally defaulted his due process argument,
Ballinger has not procedurally defaulted his claim of
ineffective assistance of counsel. Since the district court’s
decision, the Supreme Court has clarified that claims of
ineffective assistance of counsel can be raised for the first
time in a § 2255 motion. We therefore remand this case to
the district court so that Ballinger may develop the record
and the district court may decide his claim of ineffective
assistance in the first instance.
Ballinger, who describes himself as a “Luciferian,” tar-
geted his arson at small rural churches. One, the Concord
Church of Christ was approximately 100 years old and was
depicted in the opening scene of “Hoosiers.” That church
and several others were completely destroyed. Ballinger
was caught when he was burned in one of the fires and
ended up in the Burn Unit of Wishard Memorial Hospital
in Indianapolis.
To establish that his conduct sufficiently impacted inter-
state commerce to warrant federal jurisdiction, Ballinger
stipulated that he and Wood traveled on interstate and
national highways to commit the crimes and also that some
of the churches obtained utility service or books from across
state lines, some contributed to national church organ-
izations, some were insured by insurance companies in
other states, and others sent money to organizations that
sponsored missions around the world. Ballinger argues now
that under Jones v. United States, 529 U.S. 848 (2000), his
conduct did not sufficiently impact interstate commerce to
warrant federal jurisdiction. Ballinger argues that his plea
No. 03-1547 3
was involuntary because he did not understand the charges
and also that his lawyer was ineffective for failing to
consider a challenge based on Jones.
Ballinger raised his arguments in a motion under 18 U.S.C.
§ 2255, but the district court rejected both arguments, con-
cluding that in his plea agreement Ballinger waived his
right to litigate a § 2255 motion and he procedurally de-
faulted the issues by failing to litigate a direct appeal. The
district court was mistaken, however, to conclude that
Ballinger waived his right to litigate a § 2255 motion; the
plea agreement states that he waived his right to challenge
his sentence in a § 2255 proceeding. Ballinger is seeking to
challenge his conviction in a § 2255 proceeding, which is
outside of the scope of his waiver.
The district court was correct that Ballinger procedurally
defaulted his argument that his plea was involuntary. He
could have raised this argument if he litigated a direct ap-
peal, so he is barred from raising it for the first time in a
§ 2255 motion. Ballinger did not, however, procedurally de-
fault his ineffective-assistance-of-counsel argument. After
the district court’s judgment, the Supreme Court said in
Massaro v. United States, 538 U.S. 500, 509 (2003) that
“failure to raise an ineffective-assistance-of-counsel claim
on direct appeal does not bar the claim from being brought in
a later, appropriate proceeding under § 2255.” Because a court
generally applies the law in effect at the time of its decision,
see Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 281 (1969);
Meghani v. INS, 236 F.3d 843, 846 (7th Cir. 2001), we follow
Massaro and conclude that Ballinger’s ineffective-assistance-
of-counsel claim is not procedurally defaulted. So Ballinger
must be allowed to litigate his ineffective-assistance-of-coun-
sel claim, and the government concedes as much. (Appellee’s
Br. at 21 (“Ballinger, therefore, has neither waived nor pro-
cedurally defaulted his claim of ineffective assistance of
counsel.”)).
4 No. 03-1547
Unfortunately, because the district court dismissed the
case without granting Ballinger an evidentiary hearing, the
record is not sufficiently developed for us to decide whether
Ballinger’s trial counsel was ineffective. We are therefore
remanding the case to the district court so that Ballinger
may develop the record. At a minimum, Ballinger must
secure an affidavit from his trial counsel, Steven Riggs,
explaining whether he considered a challenge under Jones
at the time he counseled Ballinger to plead guilty.
In addition to deciding Ballinger’s claim of ineffective as-
sistance of counsel in the first instance, the district court
should also consider whether Ballinger’s current counsel,
Paul Kish, has a conflict of interest in continuing to rep-
resent Ballinger. After we appointed Mr. Kish, we learned
that he participated in some capacity at Ballinger’s plea
hearing. The record is unclear, however, about the nature
or extent of his participation. Although Ballinger does not
have a right to counsel at this stage of the proceeding and
could not later argue that Mr. Kish was ineffective in liti-
gating his § 2255 motion, a court must protect the integrity
of its proceedings. See Banks v. United States, 167 F.3d
1082 (7th Cir. 1999).
We therefore AFFIRM the judgment of the district court to
the extent that it held Ballinger’s due process argument
procedurally defaulted. Furthermore, we VACATE the judg-
ment of the district court that Ballinger procedurally de-
faulted his ineffective-assistance-of-counsel argument and
REMAND for further proceedings.
No. 03-1547 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-11-04