United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY, UNITED STATES MAGISTRATE JUDGE
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). 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).
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.
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.
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.
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).
General Standards in § 2255 Proceedings.
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).
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
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).
Titles 18 and 21 of the United States Code are Nonpositive
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.
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
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) 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
. . . 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
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.).
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.
Convicting Statutes are Unconstitutional.
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.
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.
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