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United States v. Sherman

United States District Court, D. Hawaii

October 12, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ARIEN SHERMAN, Defendant/Petitioner.

          ORDER: (1) DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C. § 2255, DOC. NO. 46; AND (2) DENYING CERTIFICATE OF APPEALABILITY

          J. Michael Seabright Chief United States District Judge.

         I. INTRODUCTION

         On May 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.

         Currently 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'').[1] 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.

         II. STANDARD OF REVIEW

         The 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 the sentence.

         A court 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).

         Because 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.

         III. DISCUSSION

         A. Subject Matter Jurisdiction

         Sherman 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.[2]He is simply mistaken.[3]

         “The 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 ...


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