United States District Court, D. Hawaii
ORDER: (1) DENYING MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO
28 U.S.C. Â§ 2255, DOC. NO. 46; AND (2) DENYING CERTIFICATE OF
Michael Seabright Chief United States District Judge.
31, 2016, Defendant/Petitioner Arien Sherman
(''Sherman'') pled guilty to one count of
possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B) pursuant to a plea agreement. ECF Nos.
17, 19. On September 15, 2016, the court sentenced Sherman to
a term of 54 months imprisonment, ten years of supervised
release, restitution of $10, 000, a fine of $5, 000, and a
special assessment of $100. ECF No. 31. Judgment entered on
September 22, 2016. ECF No. 32.
before the court is Sherman's Motion Pursuant to 28
U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence
By a Person in Federal Custody (A' 2255
Motion''). ECF No. 46. Although quite lengthy, at its
core the § 2255 Motion claims that this court lacked
jurisdiction over Sherman's case because the record lacks
evidence “to prove beyond a reasonable doubt that every
location relevant to the Federal Criminal Case is in Federal
Enclaves which comprise the Federal Judicial District.”
§ 2255 Motion at 3. For the reasons discussed below, the
§ 2255 Motion is DENIED. Further, the court DENIES a
certificate of appealabilility.
STANDARD OF REVIEW
court's review of Sherman's § 2255 Motion is
governed by 28 U.S.C. § 2255(a):
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
may dismiss a § 2255 motion if “it plainly appears
from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to
relief.” R. 4(b), Rules Governing Section 2255
Proceedings. A court need not hold an evidentiary hearing if
the allegations are “palpably incredible [or] patently
frivolous, ” Blackledge v. Allison, 431 U.S.
63, 76 (1977) (internal quotation marks and citation
omitted), or if the issues can be conclusively decided on the
basis of the evidence in the record. See United States v.
Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting
that a “district court has discretion to deny an
evidentiary hearing on a § 2255 claim where the files
and records conclusively show that the movant is not entitled
to relief”). Conclusory statements in a § 2255
motion are insufficient to require a hearing. United
States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). A
petitioner must “allege specific facts which, if true,
would entitle him to relief.” United States v.
Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (internal
quotation marks and citation omitted).
the court concludes that the § 2255 Motion can
conclusively be decided on the basis of the existing record,
the court will not hold an evidentiary hearing.
Subject Matter Jurisdiction
argues that the court lacks subject matter jurisdiction over
his case “without evidence in the Record of the Court
to prove beyond a reasonable doubt that every location
relevant to the Federal Criminal Case is in Federal Enclaves
which comprise the Federal Judicial District.” §
2255 Motion at 3.He is simply mistaken.
district courts of the United States shall have original
jurisdiction, exclusive of the courts of the States, of all
offenses against the laws of the United States.” 18
U.S.C. § 3231. The possession of child pornography under
18 U.S.C. § 2252(a)(4)(B), which contains an interstate