Sherman v. USA

Filing 3

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. Signed by CHIEF JUDGE J. MICHAEL SEABRI GHT on 10/12/2017. (afc)(ECF (46) in CR 16-00169-JMS; ECF 1 in CV 17-00496-JMS-RLP) CERTIFICATE OF SERVICEParticipants registered to receive electron ic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on October 13, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,

Cr. No. 16-00169 JMS
Civ. No. 17-00496 JMS-RLP

Plaintiff/Respondent,
vs.
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

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
I. INTRODUCTION
On May 31, 2016, Defendant/Petitioner Arien Sherman (ASherman@)
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
1

Sherman also filed six other related documents, including various notices, a motion for
a speedy hearing, and a Writ of Praecipe. See ECF Nos. 47-52. Because the court denies the §
2255 Motion, all related motions are deemed moot.

2

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. MejiaMesa, 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.
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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 or foreign commerce
element, is such an offense against the laws of the United States.
And the Ninth Circuit recently made clear that § 2252(a)(4)(B) is
constitutional:

2

As part of his plea agreement, Sherman waived his right to appeal or collaterally attack
the conviction and sentence except for a claim of ineffective assistance of counsel or if the court
departs upward from the applicable sentencing guideline range. Memorandum of Plea
Agreement ¶ 13, ECF No. 19. Regardless, the court reaches the merits of Sherman’s claims.
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Sherman makes several other nonsensical arguments and requests which this Order
need not address. For example, he asks that the court issue an order “to recall, rescind, terminate
and vacate all Brown Brothers Harriman Trust Company of Delaware a/k/a Brown Brothers
Harriman and Company Surely Bonds issued with regard to the instant case in the name of
Defendant” and the location of the residences of this court, the Assistant United States Attorney,
and the grand jurors. § 2255 Motion at 5, 13.

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We next address Sullivan's argument that Congress lacks the authority
to regulate purely intrastate production and possession of a single
video, and therefore neither § 2251(a) nor § 2252(a)(4)(B) can
constitutionally be applied to him. We have previously rejected this
argument, concluding that Congress could rationally “conclude that
homegrown child pornography affects interstate commerce,” and
therefore Congress may regulate even purely intrastate production of
child pornography, see United States v. McCalla, 545 F.3d 750, 755–
56 (9th Cir.2008), and criminalize its intrastate possession, United
States v. Gallenardo, 579 F.3d 1076, 1081 (9th Cir.2009).
United States v. Sullivan, 797 F.3d 623, 631–32 (9th Cir. 2015).
And to the extent that Sherman argues that 40 U.S.C. § 3112 4 limits
the court’s jurisdiction in all criminal cases to those arising within the special
maritime or territorial jurisdiction of the United States, he is again mistaken. See,
e.g., Holmes v. United States, 2014 WL 6879061 at *1 -2 (S.D.N.Y. Dec. 5, 2014);
United States v. Youngs, 2015 WL 13307025, at *4 (W.D.N.Y. Oct. 23, 2015);
Thomas v. United States, 2013 WL 4855067, at *2 (M.D. Fla. Sept. 11, 2013); see
also United States v. Sitton, 968 F.2d 947, 953 (9th Cir. 1992). As stated by the
Seventh Circuit in response to the same jurisdictional challenge to the federal bank
robbery statute, the “challenge to the federal territorial jurisdiction of the district
court is frivolous and requires no further discussion.” United States v. BanksGiombetti, 245 F.3d 949, 953 (7th Cir. 2001).
The § 2255 Motion is DENIED.

4

Section 3112 establishes laws for acquiring exclusive federal jurisdiction over land it
acquires from the states.

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B. Certificate of Appealability
In dismissing the § 2255 Motion, the court must also address whether
Sherman should be granted a certificate of appealability (“COA”). See R. 11
Governing Section 2255 Proceedings (providing that “[t]he district court must
issue or deny a certificate of appealability when it enters a final order adverse to
the applicant”). A COA may issue only if the petitioner “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The
standard for a certificate of appealability is lenient.” Hayward v. Marshall, 603
F.3d 546, 553 (9th Cir. 2010) (en banc), overruled on other grounds by Swarthout
v. Cooke, 562 U.S. 216 (2011). The petitioner is required to demonstrate only “that
reasonable jurists could debate the district court's resolution or that the issues are
adequate to deserve encouragement to proceed further.” Id. (citation and internal
quotation marks omitted). The standard “requires something more than the
absence of frivolity but something less than a merits determination.” Id. (citation
and internal quotation marks omitted). Based on the above analysis, the court finds
that reasonable jurists could not find the court's rulings debatable.
Accordingly, a COA is DENIED.

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IV. CONCLUSION
For the foregoing reasons, the court DENIES Sherman’s § 2255
Motion and DENIES a certificate of appealability. The Clerk of Court is directed
to close the case files.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 12, 2017.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

United States v. Sherman, Cr. No. 16-00169 JMS, Civ. No. 17-00496 JMS-RLP; 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

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