Bandy v. USA

Filing 1

OPINION AND ORDER: Court DENIES Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. This civil action is DISMISSED WITH PREJUDICE and the Court DECLINES to issue a certificate of appealability. Signed by Judge Rudy Lozano on 6/14/2013. cc: Bandy (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
ANTHONY JEROME BANDY,
Defendant.

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NO. 2:09-CR-125
(2:12-CV-149)

OPINION AND ORDER
This matter is before the Court on the Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody, filed by Defendant, Anthony Jerome Bandy, on April
17, 2012.

(DE #92.)

For the reasons set forth below, the motion

is DENIED.

The Clerk is ORDERED to DISMISS the civil action WITH

PREJUDICE.

Further, this Court DECLINES to issue a certificate of

appealability.

BACKGROUND
On June 16, 2009, Anthony Jerome Bandy (“Bandy”) was arrested
pursuant to a criminal complaint charging him with being a felon in
possession
922(g)(1).
charge.

of

a

firearm

in

violation

of

18

U.S.C.

section

On July 15, 2009, Bandy was indicted on that same

On October 14, 2009, Bandy filed a notice of intent to

plead guilty to count one of the indictment without the benefit of
a plea agreement, and this Court held a plea hearing two days
later.

During that Rule 11 hearing,1 Bandy was placed under oath,

and he confirmed that he wished to plead guilty to the charged
offense, that he was doing so knowingly and voluntarily, and that
no one had made any promises, assurances, or threats to him
regarding his choice to plead guilty.

The Court explained the

penalties that Bandy was facing, and Bandy confirmed that he
understood those penalties.

Bandy proceeded to describe how, on

June 14, 2009, he was knowingly and voluntarily in possession of a
firearm while in Gary, Indiana, when he was stopped by police.
stated that the gun was manufactured outside of the state.

He

Bandy

further confirmed that, at that time, he was a convicted felon.
After the Government had provided its statement in support of a
violation

of

18

U.S.C.

section

922(g)(1),

namely

that

Bandy

possessed a firearm that had previously traveled in interstate
commerce after having been convicted of a crime punishable by a
term of imprisonment in excess of one year, Bandy stated that he
agreed with the Government’s statement of facts.

The Court

accepted Bandy’s guilty plea and adjudged him guilty.
Both

the

Government

and

Bandy

submitted

sentencing

memorandums, and on July 23, 2010, the contested sentencing hearing

1

The transcript of the plea hearing is found at DE #69.

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began

but

did

not

conclude

due

to

the

voluminous

amount

of

testimony and evidence presented. On July 30, 2010, the sentencing
hearing

resumed,

and,

despite

Bandy’s

objections,

the

Court

ultimately determined that he was an Armed Career Criminal pursuant
to the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e).
Bandy

was

sentenced

to

two

hundred

and

ten

(210)

months

imprisonment.
Bandy appealed his conviction to the United States Court of
Appeals for the Seventh Circuit. Bandy’s court-appointed appellate
attorney filed an Anders brief moving to withdraw because he
concluded

that

the

appeal

presented

no

factually

or

legally

nonfrivolous issues. Bandy’s counsel noted that Bandy entered into
an unconditional, knowing, and voluntary guilty plea and neither
moved to withdraw his guilty plea nor sought to challenge that plea
on appeal.

Bandy’s counsel also noted that any challenge to the

sentence imposed would have been frivolous on appeal as it was not
imposed in violation of the law, was not the result of an incorrect
application
unreasonable.

of

the

Guidelines,

and

was

not

substantively

Bandy filed a response to counsel's motion pursuant

to Circuit Rule 51(b), in which he argued, among other things, that
his 1996 conviction in Georgia should not have qualified as a
violent felony for purposes of the ACCA.2
2

The Seventh Circuit

In addition, Bandy argued that the 1996 conviction should have been ignored
because his attorney in the Georgia prosecution did not advise him
appropriately as to the consequences of such conviction. The Seventh Circuit
Court of Appeals concluded that this argument was also frivolous. Finally,

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Court of Appeals considered the issues raised in the Anders brief
as well as Bandy’s own arguments and ultimately concluded that the
appeal was frivolous.

On June 6, 2011, the appeal was dismissed.

Bandy filed the instant motion on April 17, 2012.

In it he

asserts that his counsel was ineffective for failing to object to:
(1) a lack of personal jurisdiction; (2) a lack of subject matter
jurisdiction; and (3) the Government’s reliance on the Commerce
Clause to enforce a violation of Title 18 U.S.C. section 922(g)(1).
On July 5, 2012, the Government filed a response in opposition to
the motion.

After an extension was granted, Bandy filed a reply

brief on October 11, 2012.

This motion is ripe for adjudication.

DISCUSSION
Habeas corpus relief under 28 U.S.C. section 2255 is reserved
for “extraordinary situations.”
812, 816 (7th Cir. 1996).

Prewitt v. United States, 83 F.3d

In order to proceed on a habeas corpus

petition pursuant to 28 U.S.C. section 2255, a federal prisoner
must show that the district court sentenced him in violation of the
Constitution or laws of the United States, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject
to collateral attack.

Id.

Bandy contended that his guilty plea was invalid because of his mental
incompetency; however, the Seventh Circuit Court of Appeals noted that selfdiagnosis does not affect a person’s competence to plead guilty and concluded
that the contention was frivolous.

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A

section

2255

motion

is

neither

recapitulation of a direct appeal.

a

substitute

for

nor

Id.; Belford v. United States,

975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).

As a

result:
[T]here are three types of issues that a
section 2255 motion cannot raise: (1) issues
that were raised on direct appeal, absent a
showing
of
changed
circumstances;
(2)
nonconstitutional issues that could have been
but were not raised on direct appeal; and (3)
constitutional issues that were not raised on
direct appeal, unless the section 2255
petitioner
demonstrates
cause
for
the
procedural default as well as actual prejudice
from the failure to appeal.
Belford, 975 F.2d at 313.

Additionally, aside from demonstrating

“cause” and “prejudice” from the failure to raise constitutional
errors

on

direct

appeal,

a

section

2255

petitioner

may

alternatively pursue such errors after demonstrating that the
district court's refusal to consider the claims would lead to a
fundamental miscarriage of justice.

McCleese v. United States, 75

F.3d 1174, 1177 (7th Cir. 1996).
In assessing Bandy’s motion, the Court is mindful of the wellsettled principle that, when interpreting a pro se petitioner's
complaint or section 2255 motion, district courts have a “special
responsibility” to construe such pleadings liberally.

Donald v.

Cook County Sheriff’s Dep’t, 95 F.3d 548, 555 (7th Cir. 1996);
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (a “pro se complaint,

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‘however inartfully pleaded’ must be held to ‘less stringent
standards than formal pleadings drafted by lawyers’”) (quoting
Haines v. Kerner, 404 U.S. 519 (1972)); Brown v. Roe, 279 F.3d 742,
746 (9th Cir. 2002) (“pro se habeas petitioners are to be afforded
‘the benefit of any doubt’”) (quoting Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985)).

In other words:

The mandated liberal construction afforded to
pro se pleadings ‘means that if the court can
reasonably read the pleadings to state a valid
claim on which the [petitioner] could prevail,
it should do so despite the [petitioner's]
failure to cite proper legal authority, his
confusion of various legal theories, his poor
syntax and sentence construction, or his
unfamiliarity with pleading requirements.’
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (habeas
petition from state court conviction) (alterations in original)
(quoting Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

On the other hand, “a district court should not ‘assume the role of
advocate for the pro se litigant’ and may ‘not rewrite a petition
to include claims that were never presented.’”

Id.

Here, the

Court has assessed Bandy’s claims with these guidelines in mind.

Bandy’s Arguments - Ground One
For Ground One of his motion, Bandy asserts that his counsel
was ineffective because he failed to make an objection based on the
State’s “unfettered sovereign territorial . . . jurisdiction” and
the Court’s lack of personal jurisdiction over him. He argues that

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the Government did not establish that “this Court had the requisite
personal jurisdiction over an alleged offense committed within the
sovereign territorial jurisdiction of the State of Indiana, that
has been ceded, or in any way surrendered, to the United States.”
The Court agrees with the Government that this argument is without
merit.
The territorial jurisdiction of the United States is defined
as “all places and waters, continental or insular, subject to the
jurisdiction of the United States, except the Canal Zone.”
U.S.C. § 5.

18

United States district courts have been vested with

original jurisdiction, “exclusive of the courts of the States, of
all offenses against the laws of the United States.”
3231.
United

18 U.S.C. §

Although Bandy argues otherwise, the jurisdiction of the
States

need

jurisdiction attaches.

not

be

exclusive

before

“territorial”

See McClurkin v. United States, 922 F.2d

843, No. 89-3450, 1991 WL 1921, at *1-2 (7th Cir. Jan. 7, 1991).
The fact that states enjoy sovereignty within their boundaries does
not prevent the United States from having concurrent jurisdiction
for federal crimes committed within those same boundaries.
States v. Hamilton, 263 F.3d 645, 655 (6th Cir. 2002).

United

See also

United States v. Myers, 12 F.3d 215, No. 93-5727, 1993 WL 473790,
at *1 (6th Cir. Nov. 16, 1993) (federal courts do not need the
permission of the states to exercise jurisdiction over offenses
committed in violation of the laws of the United States).

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The

Seventh

Circuit

has

consistently

deemed

“territorial” jurisdiction arguments frivolous.

these

types

of

See United States

v. Banks-Giombetti, 245 F.3d 949, 953 (7th Cir. 2001) (collecting
cases).

Here, Bandy was charged with a crime against the United

States pursuant to a valid congressional enactment (i.e. 18 U.S.C.
§ 922(g)(1)), and it is undisputed that the crime occurred in the
Northern District of Indiana, which is part of the United States.3
The alleged “territorial” jurisdiction deficiencies as described by
Bandy simply do not exist.
To the extent that Bandy’s argument rests on a lack of
personal jurisdiction, it is undisputed that Bandy was in the
United States and appeared before this Court in connection with his
federal criminal indictment.
jurisdiction over Bandy.

Therefore, this Court had personal

See United States v. Benabe, 654 F.3d

753, 767 (7th Cir. 2011) (collecting cases soundly rejecting
“theories of individual sovereignty, immunity from prosecution, and
their ilk”); United States v. Burke, 425 F.3d 400, 408 (7th Cir.
2005)

(personal

jurisdiction

is

established

by

a

defendant's

presence in the territory of the United States); see also United
States v. Phillips, 326 Fed.Appx. 400, No. 08-2853, 2009 WL
1484599, at *1 (7th Cir. May 21, 2009) (“a district court has

3

As the Government points out, both the charging document and Bandy’s own
statements under oath during his change of plea hearing show that the offense
occurred in the Northern District of Indiana.

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personal jurisdiction over any defendant brought before it on a
federal indictment charging a violation of federal law”).

Bandy’s Arguments - Ground Two
For Ground Two of his motion, Bandy maintains that his counsel
was ineffective for failing to object to the alleged lack of
subject matter jurisdiction.

Although this is linked to his

previous jurisdictional arguments, here Bandy specifically states
that his conviction for violating 18 U.S.C. section 922(g)(1)
should be vacated because “not only is 18 U.S.C. § 3231 invalid,
but, the Constitution, itself, impeaches Congress’ power to even
enact any legislation that would vest the federal courts with
criminal subject-matter jurisdiction.”
Bandy first argues that section 3231, which, as noted above,
provides

the

United

States

district

courts

with

“original

jurisdiction, exclusive of the courts of the States, of all
offenses against the laws of the United States,” is inoperable and
void because the legislative history illustrates no quorum was
present at the time of its enactment.

18 U.S.C. § 3231.

According

to Bandy, “one of the principle mandates of the Supreme Law of the
Land requires that a Quorum be present whenever the House, where
the laws originate, is to conduct the business of enacting a law.”
Bandy’s argument, however, is without merit.

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The “enrolled-bill rule” makes it impermissible for a court to
look

“beyond

the

signatures

of

House

determining the validity of a statute.”

and

Senate

leaders

in

United States v. Farmer,

583 F.3d 131, 151 (2d Cir. 2009); see also United States v. Small,
487 Fed.Appx. 302, 303, No. 11-1614, 2012 WL 2435585 (7th Cir. June
28, 2012).

When an enrolled act is “attested to by declaration of

the two houses, through their presiding officers [the enrolled
bill] is conclusive evidence that it was passed by Congress.”
Farmer, 583 F.3d at 151-52 (citing Pub. Citizen v. U.S. Dist. Court
for D.C., 486 F.3d 1342, 1349-50 (D.C. Cir. 2007)).

As such,

section 3231 is “complete and unimpeachable,” and Bandy’s argument
fails. Small, 487 Fed.Appx. at 303 (collecting cases and citing to
94 CONG. REC. 568 (1948)).
Bandy next asserts that “any legislation [such as section
3231] that purports to vest the federal courts with criminal
subject-matter jurisdiction cannot pass constitutional muster.” He
claims that the “United States, under Article III, § 2, does not
have the ‘judicial power’ to sit in judgment over any criminal
offense.”

Again, Bandy’s argument is frivolous.

Article III, section 2 of the United States Constitution
provides that “judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority.” U.S. CONST. art. III § 2. Pursuant to this provision,

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both civil and criminal cases are “equally within the domain of the
judicial powers of the United States, and there is nothing in the
grant to justify an assertion that whatever power may be exerted
over a civil case may not be exerted as fully over a criminal one.”
Tennessee v. Davis, 100 U.S. 257, 263-64 (1879).
Congress

enacted

18

U.S.C.

section

3231,

As stated above,

which

provides

the

district courts with subject matter jurisdiction over criminal
cases.

See United States v. Krilich, 209 F.3d 968, 972 (7th Cir.

2000) (“The subject matter jurisdiction in every federal criminal
prosecution comes from 18 U.S.C. § 3231, and there can be no doubt
that Article III permits Congress to assign federal criminal
prosecutions to federal courts.

That’s the beginning and the end

of the ‘jurisdictional’ inquiry.”)

Bandy’s Arguments - Ground Three
Finally, for Ground Three, Bandy claims that his counsel was
ineffective for failing to object to the Government’s reliance on
the Commerce Clause.

Bandy asserts that the Commerce Clause “has

never been intended by the Framers to, extend to the acts of
private persons that in any way affect commerce” within the state.
In support of his position, Bandy cites to Lopez, a Supreme Court
case holding that 18 U.S.C. section 922(q) was unconstitutional
because the prohibition against the possession of firearms in a

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school zone lacked a sufficient interstate nexus.

See generally

United States v. Lopez, 514 U.S. 549 (1995).
Here, however, the Government is correct in noting that there
is ample Seventh Circuit precedent providing that 18 U.S.C. section
922(g), which makes it a crime to be a felon in possession of a
firearm, is a valid congressional enactment and not a violation of
Congress’ power under the Commerce Clause.

See e.g. United States

v. Olson, 408 F.3d 366, 372-73 (7th Cir. 2005); United States v.
Lemons, 302 F.3d 769, 772-73 (7th Cir. 2002) (both holding 18
U.S.C. section 922(g)(1) is a valid congressional enactment which
satisfies the Commerce Clause requirements).

Attempts to extend

Lopez to cases involving section 922(g) have continuously been
rebuffed. See e.g. United States v. Bell, 70 F.3d 495, 497-98 (7th
Cir. 1995); United States v. Schmidt, 571 F.3d 743, 747 (8th Cir.
2009); United States v. McAllister, 77 F.3d 387, 390 (11th Cir.
1996).4
4

Bandy raises two additional arguments for the first time in his reply
brief; these arguments have been forfeited. United States v. Carter, 695 F.3d
690, 701, n. 6 (7th Cir. 2012) (arguments raised for the first time in a reply
brief are forfeited); Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009)
(“district court is entitled to find that an argument raised for the first
time in a reply brief is forfeited”); Gonzales v. Mize, 565 F.3d 373, 382 (7th
Cir. 2009) (arguments raised for the first time in a reply brief are waived).
Waiver aside, Bandy’s contentions are without merit.
First, Bandy argues that it was a “miscarriage of justice” for the Court to
count the “confusing” and “unreliable” 1996 conviction in Georgia for burglary
as a violent felony for purposes of sentencing him as an armed career criminal
under the ACCA. See 18 U.S.C. § 924(e). However, Bandy raised this specific
argument on direct appeal, and the Seventh Circuit dismissed it as frivolous.
United States v. Bandy, 426 Fed. Appx. 448, 449, No. 10-2886, 2011 WL 2193286
(7th Cir. June 6, 2011). A section 2255 motion cannot be used as a
“recapitulation” of a direct appeal. Varela v. United States, 481 F.3d 932,
935 (7th Cir. 2007) (quoting McCleese v. United States, 75 F.3d 1174, 1177

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In sum, Bandy has failed to show that any of the arguments
described in his motion rise to the level of ineffective assistance
of counsel on the part of his attorney.

The failure to object to

or raise these meritless issues does not establish that his
counsel’s

performance

fell

below

an

objective

standard

of

reasonableness, nor has Bandy shown that such failure caused him
prejudice.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

(7th Cir. 1996). “Indeed, in the absence of changed circumstances of fact or
law, [the Court] will not reconsider an issue which was already decided on
direct appeal.” Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995).
Bandy has not alleged any changed circumstances that would permit this Court
to reconsider Bandy’s previously raised and dismissed argument.
Second, Bandy states that it was plain error for the Court to use his 2007
Class C Felony Burglary conviction under Indiana code 35-43-2-1 (cause number
45G04-0608-FC-00094) as a violent felony for purposes of sentencing him as an
armed career criminal under the ACCA. Bandy claims that “this offense is a
Misdemeanor and does not qualify for ACCA enhancement.” Not only did Bandy
waive this argument by failing to bring it on direct appeal (see e.g. McCleese
v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996), but he is clearly
mistaken. Bandy was charged with and pled guilty to intentionally breaking
and entering into the building or structure of another person with the intent
to commit theft, which is a class C felony under the Indiana Code. Although
Bandy appears to argue that his conviction is not a violent felony because it
involved “contact” with a cell phone business rather than a residence, his
argument is without merit as it confuses the Guideline’s crime-of-violence
provision with the ACCA’s violent felony provision. See Taylor v. United
States, 495 U.S. 575, 598 (1990); see also United States v. Thorton, 463 F.3d
693, 700 (7th Cir. 2006) (rejecting the argument that burglary of a “building”
is not a qualifying crime of violence under the ACCA and describing that
argument as a “false notion”). It is clear from the record (and Bandy
conceded as much prior to sentencing) that he was convicted of a burglary
which meets the federal definition of generic burglary and that this
conviction was eligible as a predicate offense for the enhancement under the
ACCA as applied by this Court.

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Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of
appealability
applicant.”

when

it

enters

a

final

order

adverse

to

the

A certificate of appealability may issue only if the

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

28 U.S.C. § 2253(c)(2).

To make such a

showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion should
have been resolved in a different manner or that the issues
presented

were

further.”

adequate

to

deserve

encouragement

to

proceed

Slack v. McDaniel, 529 U.S. 473, 484 (U.S. 2000)

(internal quotation marks and citation omitted).
For the reasons set forth above, Bandy has not stated any
grounds for relief under section 2255.
for

a

determination

decision

debatable

that
or

reasonable

incorrect

encouragement to proceed further.

or

The Court finds no basis
jurists
that

the

would

find

issues

this

deserve

Therefore, a certificate of

appealability will not be issued.

CONCLUSION
For the reasons set forth above, this motion is DENIED.
Clerk

is

ORDERED

to

DISMISS

the

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civil

case

with

The

prejudice.

Further, this Court declines to issue a certificate of appealability.

DATED: June 14, 2013

/s/RUDY LOZANO, Judge
United States District Court

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