Kozak v. United States of America

Filing 28

OPINION AND ORDER denying 1 Motion to vacate/set aside/correct sentence (2255) The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:11-cr-121-FTM-29CM), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 2/2/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STEPHEN KOZAK,
Petitioner,
v.

Case No:
Case No:

2:15-cv-150-FtM-29CM
2:11-cr-121-FTM-29CM

UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on Petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#117) 1, Memorandum in Support (Cv. Doc. #2; Cr. Doc. #118), and
Appendix (Cv. Doc. #3; Cr. Doc. #123) all filed on March 9, 2015.
Petitioner also filed a Supplement to Petitioner’s 28 U.S.C. §
2255 Motion (Cv. Doc. #11; Cr. Doc. #122) and a Supplement Appendix
(Cv. Doc. #12; Cr. Doc. #124) on April 10, 2015.

The United States

filed a Response in Opposition to Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence, Pursuant to 28 U.S.C. § 2255 (Cv.
Doc. #14; Cr. Doc. #125) on May 11, 2015, and Petitioner filed a
Reply (Cv. Doc. #23) on September 8, 2015.

For the reasons set

forth below, the §2255 motion is denied.

1 The Court will refer to the docket of the civil habeas case
as “Cv. Doc.”, and will refer to the docket of the underlying
criminal case as “Cr. Doc.”

I.
On December 8, 2011, a federal grand jury in Fort Myers,
Florida returned a two-count Indictment (Cr. Doc. #1) against
petitioner.

Count One charged petitioner with Attempting to

Persuade, Induce, Entice and Coerce a Minor to Engage in Sexual
Activity, in violation of 18 U.S.C. § 2422(b).

Count Two charged

petitioner with Attempting to Solicit Material of a Minor Engaged
in

Sexually

Explicit

Conduct,

2252A(a)(3)(B) and (b)(1).

in

violation

(Cr. Doc. #1.)

of

18

U.S.C.

§

Petitioner pled guilty

to both counts on May 11, 2012, without the benefit of a plea
agreement.

(Cr. Doc. #41.)

sentenced

petitioner

to

On August 20, 2012, the Court

concurrent

terms

of

180

months

imprisonment as to each count, followed by a term of supervised
release.

(Cr. Doc. #45.)

Judgment (Cr. Doc. #46) was filed the

same day.
The Federal Defender’s Office was appointed to represent
Petitioner on appeal (Cr. Doc. #51; Cr. Doc. #52), and ultimately
filed an Anders 2 brief, United States v. Kozak, 2013 WL 1291047
(11th

Cir.

Mar.

representation.

25,

2013),

and

(See Cr. Doc. #87.)

moved

to

withdraw

Petitioner filed a pro se

initial brief with the Eleventh Circuit on June 25, 2013.
Doc. #2, p. 2.)

2

from

(Cv.

The Eleventh Circuit conducted an independent

Anders v. California, 386 U.S. 738 (1967).

- 2 -

review of the record and determined there were no arguable issues
of merit, permitted the Federal Defender to withdraw, and affirmed
Petitioner’s conviction and sentence.

United States v. Kozak, 544

F. App’x 901 (11th Cir. 2013); Cr. Doc. #87.
The United States concedes that the §2255 motion is timely,
(Cv. Doc. #14, p. 3), and the Court agrees.
II.
Petitioner raises three grounds for relief in his §2255 motion
to

vacate.

Ground

One

asserts

that

trial

counsel

rendered

constitutionally ineffective assistance by: (a) failing to object
that Count Two of the Indictment did not state an offense; (b)
advising petitioner to plead guilty to Count Two “unknowingly,
involuntarily, and unintelligently”; (c) failing to “object to the
sufficiency of Count One and its ambiguousness”; and (d) not
“‘recognizing and requesting proof’ or holding the government to
the

standard

of

proof

in

establishing

proof

legislative, and subject-matter jurisdiction.”
4; Cv. Doc. #2, pp. 4-13).

territorial,

(Cv. Doc. #1, p.

Ground Two alleges that federal

jurisdiction was never established in the case.
5; Cv. Doc. #2, pp. 13-16.)

of

(Cv. Doc. #1, p.

Ground Three challenges the Court’s

subject-matter jurisdiction because Title 18 was not enacted as a
true law of the land the way the Constitution requires.
#1, p. 7; Cv. Doc. #2, pp. 16-22.)

- 3 -

(Cv. Doc.

A. Evidentiary Hearing Principles
A district court shall hold an evidentiary hearing on a habeas
corpus petition “unless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no
relief. . . .”

28 U.S.C. § 2255(b).

“[I]f the petitioner alleges

facts that, if true, would entitle him to relief, then the district
court should order an evidentiary hearing and rule on the merits
of his claim.”

Aron v. United States, 291 F.3d 708, 714-15 (11th

Cir. 2002) (citation omitted).

However, a district court is not

required to hold an evidentiary hearing where the petitioner’s
allegations

are

patently

frivolous,

based

upon

unsupported

generalizations, or affirmatively contradicted by the record.
at 715.

Id.

See also Gordon v. United States, 518 F.3d 1291, 1301

(11th Cir. 2008) (a hearing is not necessarily required whenever
ineffective assistance of counsel is asserted).

To establish

entitlement to an evidentiary hearing, petitioner must “allege
facts that would prove both that his counsel performed deficiently
and that he was prejudiced by his counsel’s deficient performance.”
Hernandez v. United States, 778 F.3d 1230, 1232-33 (11th Cir.
2015).
B. Ineffective Assistance of Counsel General Principles
The legal standard for ineffective assistance of counsel
claims in a habeas proceeding is well established.

To prevail on

a claim of ineffective assistance of counsel, a habeas petitioner

- 4 -

must demonstrate both that (1) counsel's performance was deficient
because it fell below an objective standard of reasonableness, and
(2) prejudice resulted because there is a reasonable probability
that,

but

for

the

deficient

performance,

proceeding would have been different.
___,

134

S.

Ct.

1081,

1087-88

the

result

of

the

Hinton v. Alabama, ___ U.S.

(2014)

(citing

Strickland

v.

Washington, 466 U.S. 668, 687, 694 (1984) and Padilla v. Kentucky,
559 U.S. 356, 366 (2010)).

“Because a petitioner's failure to

show either deficient performance or prejudice is fatal to a
Strickland claim, a court need not address both Strickland prongs
if the petitioner fails to satisfy either of them.”

Kokal v.

Sec’y, Dep’t of Corr., 623 F.3d 1331, 1344 (11th Cir. 2010)
(citations omitted).
The

proper

measure

of

attorney

performance

is

simply

reasonableness under prevailing professional norms considering all
the

circumstances.

omitted).

Hinton,

134

S.

Ct.

at

1088

(citations

“A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of
hindsight,

to

reconstruct

the

circumstances

of

counsel's

challenged conduct, and to evaluate the conduct from counsel's
perspective at the time.”

Strickland, 466 U.S. at 689.

See also

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (the Court looks to
facts at the time of counsel’s conduct).

This judicial scrutiny

is

adheres

highly

deferential,

and

the

- 5 -

Court

to

a

strong

presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.
90.

Strickland, 466 U.S. at 689-

To be objectively unreasonable, the performance must be such

that no competent counsel would have taken the action.

Rose v.

McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611
F.3d 1259, 1290 (11th Cir. 2010).

Additionally, an attorney is

not ineffective for failing to raise or preserve a meritless issue.
United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992);
Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989).
III.
A. Need For Evidentiary Hearing
Petitioner is not entitled to an evidentiary hearing.
when

the

facts

Petitioner,

the

are

viewed

record

in

the

establishes

light
that

most

Even

favorable

Petitioner

to

received

effective assistance of counsel and that the district court had
subject

matter

and

territorial

jurisdiction

over

the

case.

Therefore, the Court finds that an evidentiary hearing is not
warranted.
B. Sufficiency of Counts One and Two
Ground One ((a) and (c)) asserts that trial counsel rendered
constitutionally ineffective assistance by failing to challenge
the sufficiency of Counts One and Two of the Indictment.

The

general principles governing the sufficiency of an indictment are
well established.

- 6 -

When analyzing such challenges [to the
sufficiency of an indictment], we give the
indictment a common sense construction, and
its validity is to be determined by practical,
not technical, considerations. Such a common
sense
construction
is
satisfied
through
consideration of three factors: whether the
indictment 1) presents the essential elements
of the charged offense, 2) notifies the
accused of the charges to be defended against,
and 3) enables the accused to rely upon a
judgment under the indictment as a bar against
double jeopardy for any subsequent prosecution
for the same offense. These factors ensure the
provision of constitutional notice and due
process. Ultimately, the appropriate test is
not whether the indictment might have been
drafted with more clarity, but whether it
conforms to minimal constitutional standards.
However, even when an indictment tracks the
language
of
the
statute,
it
must
be
accompanied with such a statement of the facts
and circumstances as will inform the accused
of the specific offense, coming under the
general description, with which he is charged.
United States v. McGarity, 669 F.3d 1218, 1235–36 (11th Cir. 2012)
(internal citations and punctuation omitted).
(1)
In

Count One
Count

One

petitioner

was

charged

with

attempting

to

persuade, induce, coerce, or entice a minor to engage in sexual
activity for which he could be criminally charged, in violation of
18 U.S.C. § 2422(b).

This statute provides:

“Whoever, using the mail or any facility or
means of interstate or foreign commerce, or
within the special maritime and territorial
jurisdiction of the United States knowingly
persuades, induces, entices, or coerces any
individual who has not attained the age of 18
years, to engage in prostitution or any sexual

- 7 -

activity for which any person can be charged
with a criminal offense, or attempts to do so,
shall be fined under this title and imprisoned
not less than 10 years or for life.”
18 U.S.C. § 2422(b).

The constitutionality of the statute was

upheld in United States v. Panfil, 338 F.3d 1299 (11th Cir. 2003).
Additionally, it is clear that “the statute covers not just the
actual persuasion of a minor to engage in sexual activity, but
also an attempt to do so.”

United States v. Jockisch, 857 F.3d

1122, 1129 (11th Cir. 2017).
Count

One

of

the

Indictment

charged

that

from

March

to

September 2011, in the Middle District of Florida, petitioner,
“using any facility and means of interstate and foreign commerce,
including a computer, did knowingly attempt to persuade, induce,
entice, and coerce any individual who has not attained the age of
18 years . . . to engage in any sexual activity for which any
person can be charged with a criminal offense, in violation of
Title 18, United States Code, Section 2422(b).”

(Cr. Doc. #1, p.

1.)

insufficient

Petitioner

alleges

that

Count

One

is

or

ambiguous because it is silent as to the particular sexual activity
for which he could have been criminally charged.
pp. 7-10.)

(Cv. Doc. #2,

Petitioner asserts that the language of Count One “did

not sufficiently place him on notice as to what ‘criminal offense’,
state or federal, constitutes ‘sexual activity’ with the meaning
of federal law.”

(Cv. Doc. #2, p. 8.)

- 8 -

Petitioner also argues

that the Rule of Lenity should be applied because there are
multiple “plausible interpretations” of the statute.

(Cv. Doc.

#2, p. 10.)
The government first responds that petitioner is precluded
from raising this issue after the appellate mandate on direct
appeal has issued. (Cv. Doc. #14, p. 6.)

While the government

relies on United States v. Izurieta, 710 F. 3d 1176 (11th Cir.
2013), that case held that the appellate court’s ability to sua
sponte raise the issue of the sufficiency of an indictment, and
hence jurisdiction, extended only until the issuance of the mandate
on direct appeal.

Id. at 1179.

This does not address whether a

defendant may raise a subject matter jurisdiction issue in a §
2255 motion.

It is clear that a petitioner may do so, since the

statute authorizes a motion to vacate or set aside a sentence where
“the court did not have jurisdiction to impose the sentence.”
U.S.C. § 2255(a)(2).

28

See also United States v. Addonisio, 442

U.S. 178, 185 (1979) (“Habeas corpus has long been available to
attack

convictions

and

sentences

entered

by

a

court

without

jurisdiction.”)
After
sufficiency

considering
of

an

the

general

indictment

principles

discussed

above,

regarding
a

the

reasonable

attorney would not have filed a motion to dismiss Court One.
Additionally, since any deficiency in Count One could have been
easily cured by obtaining a superceding indictment after a motion

- 9 -

to dismiss was filed, there can no prejudice from counsel’s failure
to challenge the sufficiency of Count One.
It is clear that if petitioner attempted to persuade, entice,
induce, or coerce the 13 year old to engage in sexual activity for
which petitioner could have been charged under Florida law, he
violated § 2422(b).

United States v. Korfhage, 683 F. App’x 888,

891 (11th Cir. 2017).

The Eleventh Circuit has held that the

phrase “sexual activity for which any person can be charged with
a criminal offense” has its plain and ordinary meaning.
338 F.3d at 1301.

Panfil,

The Eleventh Circuit has also considered and

rejected petitioner’s argument in connection with a substantially
similar indictment charging violations of § 2422(b).

United

States v. McGill, 634 F. App’x 234, 235-36 (11th Cir. 2015)
(district court properly denied the defendant’s motion to dismiss
an indictment charging violation of § 2422(b), concluding that
substantially identical language in the indictment 3 “contained the
elements of a § 2422(b) offense and sufficiently apprised McGill
of the accusations against him.”).

3 The Eleventh Circuit’s opinion stated that “McGill’s
indictment charged that he, ‘using a facility and means of
interstate commerce, knowingly attempted to persuade, induce, and
entice an individual who had not attained the age of 18 years to
engage in sexual activity for which the defendant could be charged
with a criminal offense, in violation of Title 18, United States
Code, Section 2422(b).’”
McGill, 634 F. App’x at 236; compare
with Cr. Doc. #1 at 1.

- 10 -

Petitioner is correct that Count One did not identify any
specific Florida statute(s) with which Petitioner could have been
charged had his attempt to persuade the victim to engage in sexual
activity been successful.

See Cr. Doc. #1.

While pleading such

statutes in the indictment may be better practice, Jockisch, 857
F.3d at 1133 n.13, there is no such constitutional requirement.
E.g., United States v. Berk, 652 F.3d 132, 138 (1st Cir. 2011)
(explaining that “[w]e have never held that identifying a specific
criminal offense is a requirement in a section 2422 indictment,”
and citing cases from other circuits).
Even if counsel’s performance was deficient in failing to
challenge the sufficiency of Count One, there was no possible
prejudice.
have

A successful motion to dismiss Count One would simply

resulted

in

a

superceding

indictment

potential charge(s) with more specificity.

setting

forth

the

Petitioner has never

denied that there is one or more chargeable criminal offenses in
Florida if a 34 year old engages in sexual activity with a 13 year
old.

Petitioner admitted in his guilty plea colloquy that he

could have been charged with a criminal offense had the sexual
activity actually occurred:
THE COURT: . . . Would you agree, then, that, in
some way, you used the game, or the chats, to
induce, or entice, the young lady who was under 18
to engage in sexual activity?
THE DEFENDANT:

Yes, Your Honor.

- 11 -

THE COURT: And if the sexual activity had already
– or had actually occurred, would you agree that
you could have been charged with a criminal offense
based on that?
THE DEFENDANT:

Yes, Your Honor.

(Cr. Doc. #76, at 17:12-20.)

Petitioner was certainly correct.

E.g., Fla. Stat. §800.04 (lewd or lascivious offenses).
The Court finds that petitioner’s attorney did not provide
ineffective assistance of counsel by failing to challenge the
sufficiency of Count One.

Petitioner’s claim to the contrary is

denied.
(2)

Count Two:

In Count Two, petitioner was charged with attempting to
solicit material of a minor engaged in sexually explicit conduct,
in violation of 18 U.S.C. § 2252A(a)(3)(B) and (b)(1).

Section

2252A(a)(3)(B) provides that “[a]ny person” who “knowingly”—
. . .
(B)
advertises,
promotes,
presents,
distributes, or solicits through the mails, or
using any means or facility of interstate or
foreign commerce or in or affecting interstate
or foreign commerce by any means, including by
computer, any material or purported material
in a manner that reflects the belief, or that
is intended to cause another to believe, that
the material or purported material is, or
contains—
(i) an obscene visual depiction of a minor
engaging in sexually explicit conduct; or (ii)
a visual depiction of an actual minor engaging
in sexually explicit conduct;
. . .

- 12 -

shall be punished as provided in subsection
(b).
18 U.S.C. § 2252A(a)(3)(B).

Subsection (b)(1), in turn, states:

“Whoever violates, or attempts or conspires to violate, paragraph
(1), (2), (3), (4), or (6) of subsection (a). . . .” 18 U.S.C.
2252A(b)(1)

(emphasis

added).

The

constitutionality

of

this

statute was upheld in United States v. Williams, 553 U.S. 285,
192-93 (2008).
Petitioner asserts, quite correctly, that he was charged with
and pled guilty to an attempt to violate this statute.

Count Two

of the Indictment charges that from March to September 2011, in
the Middle District of Florida, Petitioner “did knowingly attempt
to solicit, using any means and facility of interstate or foreign
commerce,

including

by

computer,

any

material

or

purported

material in a manner that reflects the belief that the material
contains a visual depiction of an actual minor engaging in sexually
explicit conduct, in violation of Title 18, United States Code,
Section 2252A(a)(3)(B) and (b)(1).”
Petitioner

now

argues

that

(Cr. Doc. #1, pp. 1-2.)
§

2252A(a)(3)(B)

does

not

criminalize attempting to solicit such material because “attempt”
is not mentioned in § 2252A(a)(3)(B).

Since Congress has not

created such an attempt offense, petitioner argues, he was indicted
and pled guilty to a non-existent offense.
that

his

attorney

provided

ineffective

- 13 -

Petitioner maintains
assistance

by

not

challenging Count Two as charging a non-existent offense.

(Cv.

Doc. #2, pp. 4-5.)
While petitioner is correct that § 2252A(a)(3)(B) does not
itself mention “attempt,” it does incorporate subsection (b),
which states: “Whoever violates, or attempts or conspires to
violate, paragraph (1), (2), (3), (4), or (6) of subsection (a).
. . .”

shall be punished in a specific manner.

2252A(b)(1) (emphasis added).

18 U.S.C.

The question is whether Congress

intended to simply create a penalty provision in § 2252(b)(1), or
to also create separate offenses for attempt and conspiracy to
violate the statute.
224, 228 (1998).

Almendarez-Torres v. United States, 523 U.S.

This requires the Court to examine the statute’s

language, structure, subject matter, context, and history.

Id.

at 228-29.
It is clear that Congress has created additional offenses for
attempt and conspiracy to violate the statute.

All the factors

identified in Almendarez-Torres point to the creation of separate
offenses, not just the creation of a penalty provision.
has created other attempt offenses in a similar manner.

Congress
See 18

U.S.C. §§ 2241(a); 2241(b); 2242; 2243(a); 2243(b); 2251(e); and
2252(b)(1).

Because

there

is

a

federal

criminal

offense

of

attempted solicitation, and Count Two sufficiently sets forth this
offense,

petitioner’s

attorney

did

not

provide

ineffective

assistance by failing to challenge the sufficiency of Count Two.

- 14 -

Petitioner’s claim to the contrary is denied.
C. Advice to Plead Guilty to Count Two
In

Ground

One,

petitioner

also

argues

that

counsel

was

ineffective for advising him to “unknowingly, involuntarily, and
unintelligently” plead guilty to the non-existent offense in Count
Two.

(Cv. Doc. #2, pp. 5-7.)

For the reasons discussed supra,

this argument is meritless because Petitioner did not pled guilty
to a non-existent offense.
Moreover,

the

transcript

of

petitioner’s

guilty

plea

demonstrates that his guilty plea was in fact knowing, voluntarily
and intelligent. (Cr. Doc. #76.)

Petitioner was specifically

asked whether he understood the charges against him, whether he
was satisfied with counsel, and whether he was pleading guilty
knowingly and voluntarily, and he responded affirmatively:
THE COURT:
indictment?

And you’ve read over the

THE DEFENDANT:
THE COURT:
against you?

Yes, ma’am.

You understand the charges

THE DEFENDANT:

Yes, ma’am.

THE COURT:
Have you
indictment with your attorney?
THE
times.

DEFENDANT:

THE COURT:
to do that?

Yes,

reviewed

ma’am;

the

multiple

And you’ve had enough time

THE DEFENDANT:

Yes, ma’am.

- 15 -

THE COURT:
Are you satisfied with the
services and the advice he’s given you?
THE DEFENDANT:

Yes, ma’am.

THE COURT: Any complaints about what he
has or has not done on your behalf?
THE DEFENDANT:

No, ma’am.

. . .
THE COURT: . . . Count 2 charges you with
attempting to solicit material of a minor
engaged in sexually explicit conduct, in
violation of Title 18, United States Code,
Section 2252(a)(3)(B) [sic] and (b)(1).
Do
you understand those are the charges against
you?
THE DEFENDANT:

Yes, Your Honor.

. . .
THE
COURT:
Are
you
freely
and
voluntarily entering a plea of guilty to the
charges?
THE DEFENDANT:

Yes, Your Honor.

(Cr. Doc. #76 at 5:1-15, 6:15-19, 20:14-16.)

Additionally, the

Court found that petitioner’s guilty pleas were made knowingly,
voluntarily, intelligently and freely.

(Cr. Doc. #76, p. 20.)

Petitioner’s claim that counsel was ineffective for advising him
to plead guilty to the non-existent offense in Count Two is without
merit and is therefore denied.
D. Jurisdictional Claims
Petitioner argues both an ineffective assistance of counsel
claim and substantive claims involving the Court’s territorial,

- 16 -

legislative, and subject-matter jurisdiction.
10-13.)

Petitioner

argues

that

his

(Cv. Doc. #2, pp.
attorney

provided

constitutionally ineffective assistance by not challenging the
territorial and subject matter jurisdiction of the court, and that
the government never proved that the Court had such jurisdiction
over his case.
(1)

Ineffective Assistance of Counsel

Petitioner

argues

that

his

attorney

provided

ineffective

assistance by failing to hold the government to it burden under
Federal Rules of Evidence Rule 201(c)(2) and (b)(2) to establish
territorial and subject matter jurisdiction.
12-13.)

(Cv. Doc. #2, pp.

But nothing in Rule 201 itself places any particular

burden on the government.

Although the government must certainly

establish territorial and subject matter jurisdiction, that burden
is not founded on a rule of evidence such as Rule 201.

Indeed, a

court may take judicial notice of facts which vest the United
States with jurisdiction.

United States v. Benson, 495 F.2d 475,

481 (5th Cir. 1974); United States v. Chapman, 692 F. App’x 583
(11th Cir. 2017).
There was no ineffective assistance of counsel for failing to
argue that Fed. Rule Evid. 201 either created a jurisdictional
burden, or was not followed by the government.

Additionally,

because the Court did indeed have jurisdiction, as discussed below,

- 17 -

there can be no prejudice to petitioner.

Petitioner’s claims to

the contrary are denied.
(2)

Existence
of
Jurisdiction

Subject

Matter

and

Territorial

Petitioner argues in Ground Two that the government never
established territorial jurisdiction, and in Ground Three that the
government never established subject matter jurisdiction.
Doc. #2, pp. 13-22.)

(Cv.

Both claims are without merit.

It is certainly true that each federal criminal statute
contains a jurisdictional element which connects the statute to
one of Congress's enumerated powers, thus establishing legislative
authority to punish certain conduct.
1619, 1630 (2016).

Torres v. Lynch, 136 S. Ct.

This jurisdiction component, as well as the

substantive elements, must be proved by the government beyond a
reasonable doubt.
Here,

both

Id.
counts

of

the

Indictment

jurisdiction within the United States.

alleged

territorial

Both counts alleged that

the criminal conduct took place “in the Middle District of Florida”
between March and September 2011.
guilty

to

both

counts,

(Cr. Doc. #1.)

acknowledging

Indictment and understood the charges.

that

he

Petitioner pled
had

read

the

(Cr. Doc. #76, p. 5.)

The

government proffered a factual basis for the guilty pleas, to which
defendant stated he had only “minor discrepancies, but it’s nothing
major.”

(Id. at 15.)

Those facts indicated that on November 9,

- 18 -

2011, petitioner came to an undercover residence in Fort Myers,
Florida to meet with the person he believed was a thirteen he had
been communicating with via computer.

(Cr. Doc. #34, pp. 2-6.)

During his plea colloquy, Petitioner admitted to committing the
crimes within the Middle District of Florida:
THE COURT: . . . tell me, in your own
words, what it is that you did, specifically,
between September – or March of 2011, from
around that time, to September of 2011, here
in the Middle District of Florida.
THE DEFENDANT: I was online, playing a
video game, and I met – I met a young lady.
We chatted, and it ended up being more than
just chats, it ended up being sexual chats and
other things. . . .
(Cr. Doc. #76 at 16:2-9 (emphasis added)).

Petitioner agreed that

he used his on-line chats to induce or entice the minor to engage
in sexual activity (Cr. Doc. #76, p. 17), and that he could have
been charged with a criminal offense if the sexual activity had
actually taken place (Id.).

Fort Myers, Florida is within Lee

County, Florida, which is within the Middle District of Florida
and the territorial jurisdiction of the United States.

28 U.S.C.

§ 89.

No further “proof” was required in the context of a guilty

plea.

Counsel was therefore not ineffective in failing to object

on

jurisdictional

grounds,

and

the

government

did

establish

territorial jurisdiction within the United States.
Additionally,
present.

subject

“Subject-matter

matter

jurisdiction

jurisdiction

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defines

was

clearly

the

court’s

authority to hear a given type of case. . . .” United States v.
Morton, 467 U.S. 822, 828 (1984).

Congress gave district courts

the authority to hear certain criminal cases when it provided the
district courts with jurisdiction—“exclusive of the courts of the
States”—of “all offenses against the laws of the United States.”
18 U.S.C. § 3231.
(2016)

Musacchio v. United States, 136 S. Ct. 709, 717

(“Federal

courts’

general

criminal

subject-matter

jurisdiction comes from 18 U.S.C. § 3231, which states: ‘The
district courts . . . shall have original jurisdiction . . . of
all offenses against the laws of the United States.’” (alterations
in original)).

“[S]ubject matter jurisdiction in every federal

criminal prosecution comes from 18 U.S.C. § 3231, and, in almost
all criminal cases, that’s the beginning and the end of the
‘jurisdictional’ inquiry.”

United States v. Tinoco, 304 F.3d

1088, 1104 (11th Cir. 2002) (citation omitted).
“So

long

as

the

indictment

charges

the

defendant

with

violating a valid federal statute as enacted in the United States
Code, it alleges an ‘offense against the laws of the United States’
and,

thereby,

jurisdiction.”

invokes

the

district

court’s

subject-matter

United States v. Brown, 752 F.3d 1344, 1354 (11th

Cir. 2014) (citation omitted).

See United States v. Romero-Galue,

757 F.2d 1147, 1150-51 n.10 (11th Cir. 1985) (noting that the
district court ‘obviously had subject matter jurisdiction’ because
Congress, pursuant to 18 U.S.C. § 3231, ‘conferred upon the federal

- 20 -

district courts the power to adjudicate all cases involving crimes
against

the

Indictment

United

charged

States.’).”).
Petitioner

with

Here,

both

violating

statute as enacted in the United States Code.
1, 2.)

a

counts
valid

of

the

federal

(Cr. Doc. #1, pp.

The Indictment therefore alleges an “offense against the

laws of the United States” over which this Court has subject matter
jurisdiction.

Brown, 752 F.3d at 1354.

Petitioner’s lengthy

argument that Title 18 was not validly passed is frivolous.

As

recently as 2016 the Supreme Court recognized § 3231 as the proper
basis for federal court jurisdiction.

Musacchio v. United States,

136 S. Ct. 709, 717 (2016).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Petitioner’s Motion Under 28 U.S.C. Section 2255 to

Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #1; Cr. Doc. #117) is DENIED.
2.

The Clerk of the Court shall enter judgment accordingly

and close the civil file.

The Clerk is further directed to place

a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.

A prisoner seeking a writ of habeas

corpus has no absolute entitlement to appeal a district court’s
denial of his petition.

28 U.S.C. § 2253(c)(1); Harbison v. Bell,

- 21 -

556 U.S. 180, 183 (2009).

“A [COA] may issue . . . only if the

applicant has made a substantial showing of the denial of a
constitutional right.”
showing,

Petitioner

28 U.S.C. § 2253(c)(2).

“must

demonstrate

that

To make such a

reasonable

jurists

would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations omitted).

Petitioner has not made the

requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
February, 2018.

Copies:
Petitioner
AUSA

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2nd

day of