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Baker v. United States

United States District Court, S.D. Alabama, Southern Division

June 12, 2019

EDWARD JOSEPH BAKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY, UNITED STATES MAGISTRATE JUDGE

         Edward Joseph Baker ("Baker" or “Petitioner”), a federal prisoner proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 37)[1]. The Court has referred the petition to the undersigned Magistrate Judge who, under S.D. Ala. GenLR 72(a)(1) and (2)(R), is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of these proceedings brought under 28 U.S.C. § 2255, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2255 Proceedings for the United States District Courts. See S.D. Ala. GenLR 72(b).

         The United States has timely filed a response (Doc. 39) in opposition to Baker's § 2255 motion, to which Baker has not responded. The motion is now under submission for determination of whether expansion of the record and/or an evidentiary hearing is warranted. See Rules 7 and 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts.

         Having reviewed the parties' submissions in accordance with Rule 8(a) of the Rules Governing Section 2255 Proceedings, the undersigned finds that neither expansion of the record nor an evidentiary hearing is warranted and RECOMMENDS that Baker's § 2255 motion is due to be DENIED and DISMISSED with prejudice.

         I. Background.

         On December 7, 2015, Baker entered counseled guilty pleas to conspiracy to possess with intent to distribute approximately 3.2 pounds of methamphetamine ICE, in violation of 21 U.S.C. § 846, as charged in Count 1 of the Indictment, and possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c), as charge in Count 3 of the Indictment. (Compare Doc. 22 with Doc. 1). Baker was sentenced to a total term of imprisonment of 180 months, which was the statutory minimum sentence provided by the guideline calculations and specified in the Plea Agreement. (See Docs. 22, 32). For the § 924(c) count, Baker received a 60-month consecutive sentence to the 120-month term imposed with respect to the conspiracy to possess with intent to distribute count. (See Doc. 32). Baker did not file a direct appeal.[2]

         In his motion to vacate, Baker asserts two claims that the statutes underlying his convictions are unconstitutional, one claim that the court lacked jurisdiction over his prosecution because his offense did not occur on federal land, and a final claim of ineffective assistance of counsel which includes multiple accusations. (Doc. 39).

         II. General Standards in § 2255 Proceedings.

         Title 28 U.S.C. § 2255 "permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct the sentence." Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). Specifically, § 2255 provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence ... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

28 U.S.C. § 2255(a)-(b).

         "Once the defendant's chance to appeal has been waived or exhausted," a court is "entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum." United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). "[A] collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal." Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. at 165 (collecting cases)). "Because collateral review is not a substitute for a direct appeal, the general rules have developed that: (1) a defendant must assert all available claims on direct appeal, and (2) relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice." Id. at 1232 (internal citations, quotations, and footnote omitted).

Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998); Mills[ v. United States], 36 F.3d [1052, ] 1055[ (11th Cir. 1994)]; Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989). This rule generally applies to all claims, including constitutional claims. See Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994) ("Where the petitioner-whether a state or federal prisoner-failed properly to raise his claim on direct review, the writ is available only if the petitioner establishes cause for the waiver and shows actual prejudice resulting from the alleged violation." (internal quotation marks, punctuation, and citations omitted)); see also Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977) (applying cause and prejudice standard to constitutional claims).
A defendant can avoid a procedural bar only by establishing one of the two exceptions to the procedural default rule. Under the first exception, a defendant must show cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998); Mills, 36 F.3d at 1055; Cross v. United States, 893 F.2d 1287, 1289 (11th Cir. 1990); Greene, 880 F.2d at 1305; Martorana v. United States, 873 F.2d 283, 284 (11th Cir. 1989); Parks v. United States, 832 F.2d 1244, 1246 (11th Cir. 1987). Under the second exception, a court may allow a defendant to proceed with a § 2255 motion despite his failure to show cause for procedural default if "'a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Mills, 36 F.3d at 1055 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986)); see also Bousley, 523 U.S. at 622, 118 S.Ct. at 1611; Jones, 153 F.3d at 1307.

Id. at 234-35 (footnote omitted).

Once a petitioner files a § 2255 motion, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." [28 U.S.C.] § 2255(b). A petitioner is entitled to an evidentiary hearing if he "alleges facts that, if true, would entitle him to relief." Aron[ v. United States], 291 F.3d [708, ] 715[ (11th Cir. 2002)] (quoting Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 1989)). "[A] petitioner need only allege- not prove-reasonably specific, non-conclusory facts that, if true, would entitle him to relief." Id. at 715 n.6. However, a district court need not hold a hearing if the allegations are "patently frivolous," "based upon unsupported generalizations," or "affirmatively contradicted by the record." Holmes, 876 F.2d at 1553 (quoting United States v. Guerra, 588 F.2d 519, 520-21 (5th Cir. 1979)); see, e.g., Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004) ("Because the ... affidavits submitted by Lynn amount to nothing more than mere conclusory allegations, the district court was not required to hold an evidentiary hearing on the issues and correctly denied Lynn's § 2255 motion.").

Winthrop-Redin, 767 F.3d at 1216 (footnote omitted). Accord, e.g., Diveroli v. United States, 803 F.3d 1258, 1263 (11th Cir. 2015).

         III. Analysis.

         a. Titles 18 and 21 of the United States Code are Nonpositive Law.

         In Ground One of his petition, Baker asserts that the statutes under which he was convicted are nonpositive law and unconstitutional because “both Houses were in mutual adjournment” on June 25, 1948 and, thus, “could not have duly enacted” Title 18 and Tile 21 of the United States Code. (Doc. 37 at 4). This claim is both procedurally barred and meritless.

         As argued by the Government, “[a] prisoner who fails to raise an issue on direct appeal is procedurally barred from raising that claim in a § 2255 motion, absent a showing of cause and prejudice or a fundamental miscarriage of justice.” King v. United States, 419 Fed.Appx. 927, 927 (11th Cir. 2011) (citing Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998)). Baker does not offer any reason or cause for his failure to raise this claim on direct appeal nor can he show prejudice or a miscarriage of justice by the procedural bar. Accordingly, Baker is procedurally barred from collaterally attacking his sentence.

         Additionally, the claim is meritless. The argument that provisions of Titles 18 and 21 of the United States Code were not validly enacted by Congress has been rejected by numerous courts. The Act of June 25, 1948, Pub. L. No. 80-722, 62 Stat. 683 was codified at 18 U.S.C. § 924, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, Tit. II, §§ 401, 406, 84 Stat. 1260, 1265 was codified at 21 U.S.C. §§ 841 and 846. In United States v. Levy, 849 F.Supp.2d 1353 (S.D. Fla. 2012)[3] our sister court considered and rejected the same basic argument, that Title 18 of the United States Code is unconstitutional, based on the “enrolled bill rule”. Under the “enrolled-bill rule”, courts are precluded from looking beyond the signatures to determine the validity of a statute. See Marshall field & Co. v. Clark, 143 U.S. 649, 672, 12 S.Ct. 495, 36 L.Ed. 294 (1892) (“It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself -- nothing to the contrary appearing upon its face -- that it passed Congress.”). Accordingly, a legislative document that is authenticated in its regular form by the appropriate officials is considered properly adopted. United States v. Farmer, 583 F.3d 131, 151-52 (2d Cir. 2009). The Levy court also examined the legislative record behind the bill that became Title 18 and found it properly passed:

. . . contrary to any contention that Public Law 80-772 was signed without the proper authority of Congress, the House Journal indicates that the Speaker of the House and the President pro tempore of the Senate were authorized to sign enrolled bills after the congressional adjournment pursuant to House Concurrent Resolution 219. See H. Journal 80th Cong., 2d Sess. 771 (1948) ("Resolved, That notwithstanding the adjournment of the two Houses until December 31, 1948, the Speaker of the House of Representatives and the President pro tempore of the Senate be, and they are hereby, authorized to sign enrolled bills and joint resolutions duly passed by the two Houses and found truly enrolled."). See also S. Journal, 80th Cong., 2d Sess. 578-79 (1948) (stating that the President pro tempore of the Senate, pursuant to the authority of House Concurrent Resolution 219, signed H.R. 3190 after the adjournment of the Senate on June 20, 1948). In sum, § 3231 is valid. See Wolford v. United States, 362 Fed.Appx. 231, 232 (3d Cir.2010) ("Section 3231 was properly enacted and is binding. The 1948 amendment to that statute, Public Law 80-772, passed both houses of Congress and was signed into law by President Truman[.]").

849 F.Supp.2d 1353, 1356-57. Levy further noted that federal courts in various jurisdictions all rejected similar claims.[4]

         “To enact a statute into positive law, Congress must specifically approve the language of the codification.” Goldsby v. United States, 152 Fed.Appx. 431, 440 (6th Cir. 2005) (internal quotation and citation omitted). This is done by the Office of the Revision Counsel submitting each individual title of the Code to Congress to be enacted. Id. Notably, “as of 1998, less than half the titles in the Code had been enacted into positive law.” Id. Courts have routinely held that “Congress's failure to approve the specific placement of Title 21 does not affect the validity of the underlying legislation.” Id.; see also Beriguete v. United States, No. 09-23043-Civ COOKE, 2010 U.S. Dist. LEXIS 144112, *25-26 (S.D. Fla. Sept. 24, 2010) (upholding Title 21 as valid law and citing to United States v. Skurdal, 1993 U.S. App. LEXIS 11957, 1993 WL 164651, *1 (9th Cir. 1993) (Upheld convictions under 18 U.S.C. §§ 841 and 846 and 18 U.S.C. § 2 despite Congress's failure to enact the title into positive law, specifically finding "Congress's failure to enact a title into positive law has only evidentiary significance and does not render the underlying enactment invalid or unenforceable.")); Wilson v. United States, 1991 U.S. App. LEXIS 26092, 1991 WL 216477, *1 (10th Cir. 1991)(the fact that Title 21 had not been enacted into positive law does not render the substantive law it records a nullity.).

         Petitioner Baker was charged with and plead guilty to violations of 18 U.S.C. § 924(c) and 21 U.S.C. § 846. In doing so, he admitted to conspiring with others and attempting to distribute methamphetamine and the use/carry of a firearm in relation to a drug trafficking offense. Accordingly, his offenses are punishable under the statutes, which courts have determined to be valid Congressional enactments despite whether or not they or positive law. Beriguete, 2010 U.S. Dist. LEXIS at *26. Consequently, Baker's claim should be denied.

         b. Convicting Statutes are Unconstitutional.

         In Ground Two of his petition, Baker argues that the statutes under which he was convicted are unconstitutional. Specifically, he contends that the statutes lack a nexus to interstate commerce and that the laws lack defined limits delineating federal and state jurisdictions.

         This claim is a challenge to the validity of his conviction and sentence; such claims must generally be presented on direct appeal or the defendant is barred from presenting the claim in a § 2255 action. See McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (citation omitted). The two exceptions to this procedural default rule do not apply in this case, as Baker has not argued or shown cause and prejudice for his failure to present this claim on direct appeal nor has he supplied evidence establishing his actual innocence. Id. at 1196. Because neither exception is applicable, federal review of this claim is precluded. However, even if the Court were to review Baker's claim, the claim clearly lacks merit.

         Baker was convicted of violating 18 U.S.C. § 924(c) and 21 U.S.C. 846. Section 924(c) states:

. . . any person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment ...

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