Gilkey v. United States of America

Filing 6

ORDER TO MODIFY DOCKET, ADDRESSING PENDING MOTION, DENYING MOTION PURSUANT TO 28 USC § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge S. Thomas Anderson on 10/26/2015. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

MOSE TYRONE GILKEY,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Cv. No. 2:14-cv-02924-STA-cgc
Cr. No. 2:12-cr-20079-STA

ORDER TO MODIFY THE DOCKET,
ADDRESSING PENDING MOTION,
DENYING MOTION PURSUANT TO 28 U.S.C. § 2255,
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Before the Court is the amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (“Amended § 2255 Motion”) filed by Movant,
Mose Tyrone Gilkey, Bureau of Prisons register number 12575-076, an inmate at the United
States Penitentiary in Pollock, Louisiana (Am. § 2255 Mot., Gilkey v. United States, No. 2:14cv-02924-STA-cgc (W.D. Tenn.), ECF No. 4) and Gilkey’s Motion for Post-Conviction
Discovery (Mot. for Disc., id., ECF No. 1). For the reasons stated below, the Court DENIES the
Motion for Post-Conviction Discovery and DENIES Movant’s Amended § 2255 Motion.
I.

BACKGROUND
A.

Case Number 12-20079

On March 29, 2012, a federal grand jury returned a two-count indictment against Gilkey.
(Indictment, United States v. Gilkey, No. 2:12-cr-20079-STA (W.D. Tenn.), ECF No. 1 (sealed).)

On June 26, 2012, the grand jury returned a six-count superseding indictment against Gilkey.
(Superseding Indictment, id., ECF No. 12 (sealed).) Counts 1 and 2 charged Gilkey, a convicted
felon, with possessing a Charter Arms Corp. .44 special caliber revolver (Count 1) and Smith &
Wesson .44 special caliber ammunition (Count 2) on or about December 3, 2011, in violation of
18 U.S.C. § 922(g)(1). Count 3 charged Gilkey, a convicted felon, with possessing a Smith &
Wesson .41 magnum caliber revolver on or about June 5, 2012, in violation of 18 U.S.C. §
922(g)(1). Count 4 charged that, on or about June 5, 2012, Gilkey possessed a Smith & Wesson
.41 caliber magnum revolver from which the manufacturer’s serial number had been removed,
obliterated and altered, in violation of 18 U.S.C. § 922(k). Count 5 charged that, on or about
June 5, 2012, Gilkey used a falsely made, forged, counterfeited and altered seal of the Bureau of
Indian Affairs that was affixed to an identification card identifying him as “Ahnuck Musa Bey”
for the purpose of concealing from law enforcement that there was an outstanding warrant for his
arrest and that his driver’s license was suspended, in violation of 18 U.S.C. § 506(a)(2). Count 6
charged that, on or about June 5, 2012, Gilkey did, with fraudulent intent, possess a falsely made,
forged, counterfeited and altered seal of the Bureau of Indian Affairs and presented identification
bearing that seal to law enforcement during a traffic stop to conceal that there was an outstanding
federal warrant for his arrest and that his driver’s license was suspended, in violation of 18
U.S.C. § 506(a)(3).
The factual basis for these charges is stated in the presentence report (“PSR”):
4.
According to the investigative file, on December 3, 2011, officers
were responding to a weapons violation call at St. Elmo Road and Schoolfield
Road in Memphis, Tennessee when they observed Mose Tyrone Gilkey, a/k/a
“Ahnuck Musa Bey,” operating a 2005 blue Infinity, Tennessee license plate
#492-SWB, traveling at a high rate of speed in the opposing lane of traffic. The
officers activated their emergency lights and sirens in an attempt to conduct a
traffic stop; however, Gilkey turned off his vehicle’s lights, swerved through
traffic, and disregarded a stop sign. Gilkey attempted to execute a left turn but
2

lost control of his vehicle and struck a tree behind a residence at 3965 Schoolfield
Road. The officers approached the vehicle and observed a firearm in the open
glove compartment. Gilkey was removed from the vehicle and the officers
requested his identification. Gilkey was unable to provide any identification, but
a National Crime Information Center (NCIC) check revealed his driver’s license
was revoked and he had three outstanding warrants. The officers began to
handcuff Gilkey, at which time he began to struggle. During the struggle, officers
felt several large bulges in Gilkey’s jacket pockets. Gilkey was arrested and a
search revealed several large bundles of money ($13,994.00), nine rounds of
.44 caliber ammunition, and a baby bottle containing promethazine (105.4
grams) on Gilkey’s person. The firearm, a Charter Arms Corporation
Revolver loaded with five live rounds, and two folding pocket knives were
recovered from the vehicle. Gilkey was placed into the officers’ vehicle, at which
time be attempted to destroy evidence by crushing several pills that were in his
possession. The officers recovered nine pills, which were identified as Xanax,
along with one piece of a blue pill (type unknown).
5.
On June 5, 2012, officers were responding to a weapons violation
call to 3044 Peggy Road in Memphis, Tennessee when they observed Gilkey
operating a 2003 Dodge Intrepid, Tennessee license plate #C71-62T. The officers
also observed the vehicle’s windshield was damaged and a check of the vehicle’s
registration revealed that the registration was not on file. The officers activated
their emergency lights and sirens in an attempt to conduct a traffic stop; however,
Gilkey continued through the intersection of Peggy Road and Warford Street and
did not stop until he parked in the driveway of 3044 Peggy Road. The officers
approached the vehicle and requested Gilkey’s identification, at which time
Gilkey advised that he was an Indian and was not required to possess a Tennessee
driver’s license. When Gilkey was again asked for identification, he refused and
also could not provide the officers with proof of vehicle registration or insurance.
Gilkey was detained, at which time he provided the officers with a picture
identification card bearing Gilkey’s picture, the name “Ahnuck Musa Bey,”
the title “Native American National Union,” United States Department of
State number 45413912-3, and the “life date” of “02-7-1982.” The card
reflected a counterfeit seal of the Bureau of Indian Affairs. Gilkey insisted
that his name was “Ahnuck” and advised the officers that they could retrieve his
paperwork from the vehicle. When the officers did so, they observed a piece of
paper on top of a stack of paperwork that bore Gilkey’s true name and Social
Security number. A check revealed that Gilkey had an active federal warrant
(#1220079) for Felon in Possession of a Firearm and that his driver’s license was
revoked.
6.
The paperwork was reviewed and found to include UCC Financing
Statements; Internal Revenue Service documentation for the “Mose Tyrone
Gilkey Estate” with Employer Identification Number 45-6853856 and for the
Native American International Union with Employer Identification Number 454139123; a Native American International Union International Irrevocable Trust
3

Agreement and other Native American International Union documents; an NAIU
Governing Law document; an Affidavit of Articles of Unincorporated
Association; an International Law Nationality Affidavit of Private Aboriginal
Indigenous American Nationality; Indigenous Baptismal Record of Live Birth; a
Private Security Agreement; an Affidavit of Truth; a Hold Harmless and
Indemnity Agreement; an International Law Nationality Affidavit and Notice in
Admiralty of Private Aboriginal Constitution Right to Travel; Moorish Science
Temple of America and Moorish Holy Temple of Science of the World
documents; an NAIU Genealogy Certification; Native American International
Union Color of Authority Notices for Officers; and Ministers & Nationals for the
Chickasaw Region Four Central Shaykhakhu-Sagamoor Aboriginal Nation of
Muurs documentation. Multiple copies of the “Plank Road Newsletter” were also
recovered from Gilkey’s vehicle. The newsletter includes the heading “All
District Attorneys are illegal; All Judges are illegal and do not allow the REAL
CONSTITUTION in the Courtrooms!” Also in the newsletter is the following:
“Mayor AC Wharton and John T. Fowlkes are best friends and true SLAVERS;
they are longtime violators of the law and ethics, and it is clear they are
attempting to remove the Chakchiuma Sektchi People from public access...”
7.
The officers searched the vehicle and discovered a Smith &
Wesson revolver, loaded with five live rounds and one spent round, in the
glove compartment. The serial number could not be read as it had been altered.
Officers also discovered a white ski mask underneath the firearm. The firearm
was taken to evidence where the grip was removed, revealing the second,
unaltered serial number. A check revealed the firearm (valued at $813.00) was
taken during a residential burglary on November 23, 2008, from victim Dixie Lay
in Memphis, Tennessee, report #0781950596. The officers later discovered that
the vehicle was registered to Uteka Westbrook at 4864 Libby Lane, Memphis,
Tennessee. Gilkey refused to provide a written statement.
8.
An examination of the firearms and ammunition conducted by the
Bureau of Alcohol, Tobacco, Firearms and Explosives revealed the firearms
possessed by Gilkey, a Charter Arms Corporation, Bulldog Pug .44 special
caliber revolver, serial #1079062; and a Smith & Wesson model 657-3 .41 caliber
revolver, serial #BSK2115; and .44 caliber ammunition, were not manufactured in
Tennessee and therefore, at some point, traveled in interstate and/or foreign
commerce. A criminal history search revealed Gilkey is a convicted felon.
(PSR ¶¶ 4-8.)
Gilkey retained Jacob E. Erwin to represent him in the criminal case. (See Min. Entry,
United States v. Gilkey, No. 2:12-cr-020079-STA (W.D. Tenn.), ECF No. 9; Min. Entry, id.,
ECF No. 18; Not. of Appearance, id., ECF No. 20.) At a special report date on April 4, 2013,

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Gilkey advised the Court that he wanted to proceed pro se. The Court set the matter for trial on
June 3, 2013, and directed Erwin to act as “elbow counsel” for Gilkey. (Min. Entry, id., ECF
No. 37.) The Court issued an order on April 5, 2013, that stated, in pertinent part, as follows:
On April 4, 2013, the Court conducted a special report date with the
parties to discuss the current status of the case. Defendant addressed the Court
and repeatedly stated that he was “firing” his retained attorney. Counsel for
Defendant added that he had represented Defendant for a number of years and
that Defendant was suddenly invoking “sovereign citizen” defenses.
Trial in this matter is currently set for June 3, 2013, and will proceed
as scheduled. . . . Defendant should carefully consider whether he will represent
himself at trial or continue to have representation through his retained attorney.
Defendant should be prepared to announce his decision about his representation at
the pretrial conference. In the event Defendant chooses to represent himself,
Defendant should be prepared to respond to questions from the Court about his
understanding of the proceedings, the charges against him, the facts of the case,
the possible penalty if convicted, and other factors. In the meantime, Defendant is
strongly encouraged to cooperate with his attorney so that counsel can investigate
and prepare any available defenses. . . .
(Order, id., ECF No. 38.)
On May 14, 2013, Gilkey filed an in forma pauperis motion. (Appl. to Proceed in
District Court Without Prepaying Fees or Costs (Short Form), ECF No. 39 (sealed).) On May
14, 2013, the Court set a status conference for May 21, 2013. (Setting Letter, id., ECF No. 40.)
On May 21, 2013, Erwin filed a motion to continue because he was not available for the status
conference. (Mot. to Continue, id., ECF No. 42.) At the scheduled status conference on May 21,
2013, the Court denied the motion for a continuance because the presence of Erwin, who was
acting as “elbow counsel,” was not required. The Court addressed Gilkey and asked whether he
wanted to have appointed counsel or continue pro se. Gilkey did not respond, and the Court
construed his silence as a desire to proceed pro se. The Court stated that the trial was scheduled
for June 3, 2013, and instructed Gilkey that it was his responsibility to familiarize himself with

5

the Federal Rules of Criminal Procedure. The Government provided discovery to Gilkey. (Min.
Entry, id., ECF No. 43.)
At the pretrial conference on June 3, 2013, Gilkey’s request for a continuance to file
additional documents and subpoena witnesses was denied. The Court questioned Gilkey about
his legal training and knowledge of the law and criminal procedure. Gilkey refused to respond to
the Court’s questions. The Court reviewed the charges in the superseding indictment and the
penalties that could be imposed and warned Gilkey of the danger of self-representation. Gilkey
elected to proceed pro se with Erwin as “elbow counsel.” (Min. Entry, id., ECF No. 46.)
On the scheduled trial date of June 4, 2013, Gilkey changed his mind about proceeding
pro se and asked to be represented by counsel. Gilkey also requested a continuance to prepare
and file pretrial motions.

Gilkey was questioned by the Court about his decision.

Government opposed the motion for a continuance.

The

The Court granted Gilkey’s motions,

appointed Erwin as counsel, and gave him until June 18, 2013, to file pretrial motions. The trial
was reset for August 3, 2013. (Min. Entry, id., ECF No. 49.)
On July 29, 2013, Erwin addressed the Court and requested a report date. (Min. Entry,
id., ECF No. 50.) The Court set a report date for August 1, 2013. (Id.) At the report date, it was
determined that the matter would proceed to trial on August 5, 2013. (Min. Entry, id., ECF No.
51.)
A jury trial on the charges against Gilkey commenced on August 5, 2013. (Min. Entry,
id., ECF No. 54; Min. Entry, id., ECF No. 56; Min. Entry, id., ECF No. 57.) On August 7, 2013,
the jury returned a guilty verdict on every count of the Superseding Indictment. (Min. Entry, id.,
ECF No. 57; Jury Verdict, id., ECF No. 58.)

6

The sentencing was set for November 7, 2013. (Order, id., ECF No. 62.) On October 21,
2013, the Clerk docketed various pro se documents submitted by Gilkey (Notice, id., ECF No.
64), including a letter to his attorney advising that “your services are terminated forthwith; you
are to provide no further services on my behalf.” (Undated Letter to Jacob Edwin Erwin, id.,
ECF No. 64-2.)
At the hearing on November 7, 2013, Gilkey made an oral request to fire Erwin, and
Erwin made an oral motion to withdraw based on ethical considerations. Gilkey also stated that
he had not received the PSR until November 4, 2013. The Court directed Erwin to file a written
motion for leave to withdraw and directed Gilkey to file his pro se objections to the PSR and to
serve a copy on the Clerk and the Government. The parties were advised that the sentencing
hearing was reset for December 10, 2013. (Min. Entry, id., ECF No. 66.)
On November 19, 2013, the sentencing hearing was advanced to November 25, 2013.
(Setting Letter, id., ECF No. 67.) On November 25, 2013, Gilkey notified the Court that he was
not prepared to proceed because he had no means of notifying his witnesses of the new
sentencing date. The Court reset the sentencing hearing for December 10, 2013. Erwin was not
present at that hearing, and the case manager was directed to notify Erwin that he must be
present at the next hearing date. (Min. Entry, id., ECF No. 68.)
On December 9, 2013, Gilkey filed a pro se motion to dismiss for lack of territorial
jurisdiction.

(Mot. to Dismiss for Lack of Territorial Jurisdiction, id., ECF No. 69.)

On

December 10, 2013, Erwin filed a motion seeking leave to withdraw. (Mot. to Withdraw, id.,
ECF No. 70.)
At the hearing on December 10, 2013, the Court sentenced Gilkey to a term of
imprisonment of three hundred months, to be followed by a three-year period of supervised

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release. (Min. Entry, id., ECF No. 71.)1 Gilkey was pro se at that hearing, and Erwin, his
“elbow counsel,” was present. At the conclusion of the hearing, the Court advised Gilkey of his
appeal rights and handed him the appeal package. (Id.) The Court issued an order on December
10, 2013, granting Erwin’s motion for leave to withdraw. (Order, United States v. Gilkey, No.
2:12-cr-20079-STA (W.D. Tenn.), ECF No. 72.) Judgment was entered on December 11, 2013.
(J. in a Criminal Case, id., ECF No. 73 (sealed).)
On December 19, 2013, Gilkey filed a pro se Notice of Appeal, accompanied by an in
forma pauperis motion that contained no financial information. (Not. of Appeal, id., ECF No.
75; Appl. for Leave to Proceed Without Fee, id., ECF No. 76.) In an order issued on January 7,
2014, the Court denied the in forma pauperis motion and directed Gilkey to provide a completed
application to proceed in forma pauperis within twenty days. (Order, id., ECF No. 79.) On
January 27, 2014, Gilkey filed an in forma pauperis motion that was signed but otherwise blank
and a printout of his commissary purchases. (Appl. to Proceed in District Court Without
Prepaying Fees or Costs (Short Form), id., ECF No. 80.) The Court issued an order on January
28, 2014, denying leave to proceed in forma pauperis because “[t]he application is not completed
and does not contain a certified inmate trust fund account statement.” (Order at 1, id., ECF No.
81.) Gilkey was ordered, for the second time, to file a properly completed in forma pauperis
application within twenty days. (Id.) Gilkey failed to respond to that order. On February 28,
2014, the Sixth Circuit Court of Appeals dismissed Gilkey’s appeal for want of prosecution due
to his failure to file a properly completed in forma pauperis application. United States v. Gilkey,
No. 13-6633 (6th Cir.).

1

Gilkey was sentenced to concurrent terms of 300 months on Counts 1, 2 and 3 and to
concurrent terms of 60 months on Counts 4, 5 and 6, with all sentences to run concurrently.
8

B.

Case Number 14-2924

On November 28, 2014, Gilkey filed a document, titled “MOTION FOR POSTCONVICTION DISCOVERY PURSUANT TO RULE 6 OF THE RULES GOVERNING §2255
HABEAS PROCEEDINGS,” that the Clerk erroneously docketed as a § 2255 motion. (Mot. for
Disc., Gilkey v. United States, No. 2:14-cv-02924-STA-cgc (W.D. Tenn.), ECF No. 1.)2
On December 3, 2014, Gilkey filed a pro se § 2255 Motion. (§ 2255 Mot., id., ECF No.
3.)3 On December 4, 2014, Gilkey filed his Amended § 2255 Motion, which is intended to
supersede his original filing. (Am. § 2255 Mot., Gilkey v. United States, No. 2:14-cv-02924STA-cgc (W.D. Tenn.), ECF No. 4.)4 The Amended § 2255 Motion presents the following
issues:
1.

“Petitioner was deprived of his Sixth Amendment right to counsel, where
counsel failed to file a direct appeal, after specifically being told to” (id. at
PageID 34 (irregular capitalization omitted); see also Attachment 1,
Gilkey v. United States, No. 2:14-cv-02924-STA-cgc (W.D. Tenn.), ECF
No. 4-1);

2.

“Lack of Territorial Jurisdiction” (Am. § 2255 Mot. at PageID 5, id., ECF
No. 4; see also id. at PageID 5-7; Attachment 2, Gilkey v. United States,
No. 2:14-cv-02924-STA-cgc (W.D. Tenn.), ECF No. 4-2); and

2

The Clerk is directed to modify the docket to reflect that the filing is a discovery
motion, not a § 2255 motion.
3

The Clerk is directed to modify the docket to reflect that this filing is the original § 2255
motion, not an amendment. The Clerk is further directed to modify the docket to reflect that the
action was commenced on December 3, 2014, the date on which the original § 2255 Motion was
received. See Fed. R. Civ. P. 3 (“A civil action is commenced by filing a complaint with the
court.”).
4

The Clerk is directed to modify the docket to reflect that this filing is an amended §
2255 motion, not a second amendment.
9

3.

“Lack of Jurisdiction Pursuant to Article 2)(3) [sic] of the U.S.
Constitution” (Am. § 2255 Mot. at PageID 7, id., ECF No. 4; see also id.
at PageID 7-8; Attachment 3, Gilkey v. United States, No. 2:14-cv-02924STA-cgc (W.D. Tenn.), ECF No. 4-3).

II.

THE PENDING MOTION
In his Motion for Post-Conviction Discovery, Gilkey seeks production of “all discovery

material, i.e., Police Report, FBI 302 Reports, DEA 6’s, Witness Reports and a copy of the
Search and Arrest Warrant.” (Mot. for Disc. at 2, id., ECF No. 1.) Gilkey asks that proceedings
in this matter be stayed until he has received and had the opportunity to review the requested
discovery. (Id. at 2.) He also seeks leave to supplement his § 2255 Motion “in relationship to
the issues presented, or any other matter that may be deemed relevant to these proceedings.” (Id.
at 1-2.)
Habeas petitioners and § 2255 movants do not have an automatic right to discovery.
Johnson v. Mitchell, 585 F.3d 923, 934 (6th Cir. 2009). Discovery in § 2255 cases is controlled
by Rule 6(a) of the Rules Governing Section 2255 Proceedings for the United States District
Courts (“§ 2255 Rules”), which states that “[a] judge may, for good cause, authorize a party to
conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in
accordance with the practices and principles of law.” Rule 6(b) provides, in part, that “[a] party
requesting discovery must provide reasons for the request.” See Cornwell v. Bradshaw, 559 F.3d
398, 410 (6th Cir. 2009) (“For good cause shown, the district court has the discretion to permit
discovery in a habeas proceeding”). Rule 6 is meant to be “consistent” with the Supreme Court’s
decision in Harris v. Nelson, 394 U.S. 286 (1969). Bracy v. Gramley, 520 U.S. 899, 909 (1997).
Thus,

10

where specific allegations before the court show reason to believe that the
petitioner may, if the facts are fully developed, be able to demonstrate that he is
confined illegally and is therefore entitled to relief, it is the duty of the court to
provide the necessary facilities and procedures for an adequate inquiry.
Harris, 394 U.S. at 300.
“Good cause” is not demonstrated by “bald assertions” or “conclusory allegations.”
Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001); see also Williams v. Bagley, 380 F.3d 932,
974 (6th Cir. 2004) (same). Rather, the requested discovery must be materially related to claims
raised in the habeas petition and be likely to “resolve any factual disputes that could entitle [the
petitioner] to relief.” Williams, 380 F.3d at 975 (internal quotation marks and citation omitted);
see Bracy, 520 U.S. at 908-09 (allowing discovery relevant to “specific allegations” of fact in
support of a claim of constitutional error); Post v. Bradshaw, 621 F.3d 406, 425 (6th Cir. 2010)
(discovery provides petitioner “that extra evidence” he needs to prove or strengthen his case);
Braden v. Bagley, No. 2:04-CV-842, 2007 WL 1026454, at *2 (S.D. Ohio Mar. 30, 2007) (“Rule
6’s ‘good cause’ standard requires petitioner to at least attempt to identify what he expects to
uncover through his discovery requests”). Rule 6(a) does not permit a “fishing expedition
masquerading as discovery.” Stanford, 266 F.3d at 460.
Gilkey has not shown good cause for the discovery he seeks. As a preliminary matter,
the criminal docket reflects that the Government provided a copy of the discovery to Gilkey
while he was proceeding pro se. (See Min. Entry, United States v. Gilkey, No. 2:12-cr-20079STA (W.D. Tenn.), ECF No. 43.) Even if the instant discovery request seeks material that was
not provided during pretrial discovery—which Gilkey does not allege—the material sought has
no bearing on the claims raised in the Amended § 2255 Motion, which address counsel’s
supposed failure to file a direct appeal and the jurisdiction of the Court over the criminal case.

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Gilkey is not entitled to conduct a fishing expedition to search for additional issues to be raised
in this proceeding. The motion for Post-Conviction Discovery is DENIED.
III.

THE LEGAL STANDARD
Pursuant to 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 prisoner seeking relief under 28 U.S.C. § 2255 must allege either (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal. See Ray v. United States, 721
F.3d 758, 761 (6th Cir. 2013). “[N]onconstitutional claims that could have been raised on
appeal, but were not, may not be asserted in collateral proceedings.” Stone v. Powell, 428 U.S.
465, 477 n.10 (1976). “Defendants must assert their claims in the ordinary course of trial and
direct appeal.” Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule is not
absolute:
If claims have been forfeited by virtue of ineffective assistance of counsel,
then relief under § 2255 would be available subject to the standard of Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In those
rare instances where the defaulted claim is of an error not ordinarily cognizable or
constitutional error, but the error is committed in a context that is so positively
outrageous as to indicate a “complete miscarriage of justice,” it seems to us that
what is really being asserted is a violation of due process.
Id.

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Even constitutional claims that could have been raised on direct appeal, but were not, will
be barred by procedural default unless the defendant demonstrates cause and prejudice sufficient
to excuse his failure to raise these issues previously. El-Nobani v. United States, 287 F.3d 417,
420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99
(6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v.
United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may
obtain review of a procedurally defaulted claim by demonstrating that he is “actually innocent.”
Bousley v. United States, 523 U.S. 614, 622 (1998).
After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears
from the motion, any attached exhibits, and the record of prior proceedings that the moving party
is not entitled to relief, the judge must dismiss the motion.” Rule 4(b), § 2255 Rules. “If the
motion is not dismissed, the judge must order the United States attorney to file an answer,
motion, or other response within a fixed time, or to take other action the judge may order.” Id.
The movant is entitled to reply to the Government’s response. Rule 5(d), § 2255 Rules. The
Court may also direct the parties to provide additional information relating to the motion. Rule
7, § 2255 Rules.
“In reviewing a § 2255 motion in which a factual dispute arises, the habeas court must
hold an evidentiary hearing to determine the truth of the petitioner’s claims.” Valentine v.
United States, 488 F.3d 325, 333 (6th Cir. 2007) (internal quotation marks omitted). “[N]o
hearing is required if the petitioner’s allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or conclusions rather than statements of fact.”
Id. (internal quotation marks omitted). When the judge considering the § 2255 motion also
presided over the criminal case, the judge may rely on his recollection of the prior case. Blanton

13

v. United States, 94 F.3d 227, 235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63,
74 n.4 (1977) (“[A] motion under § 2255 is ordinarily presented to the judge who presided at the
original conviction and sentencing of the prisoner. In some cases, the judge’s recollection of the
events at issue may enable him summarily to dismiss a § 2255 motion . . . .”). Movant has the
burden of proving that he is entitled to relief by a preponderance of the evidence. Pough v.
United States, 442 F.3d 959, 964 (6th Cir. 2006).
IV.

ANALYSIS OF MOVANT’S CLAIMS
A.

The Alleged Failure to File a Direct Appeal (Claim 1)

In Claim 1, Gilkey alleges that he was deprived of his Sixth Amendment right to counsel
because his attorney failed to file a direct appeal after being asked to do so. (Am. § 2255 Mot. at
PageID 34, Gilkey v. United States, No. 2:14-cv-02924-STA-cgc (W.D. Tenn.), ECF No. 4; see
also Attachment 1, id., ECF No. 4-1 (same).) An attachment to the Amended § 2255 Motion
refers to an attached affidavit (Attachment 1, id., ECF No. 4-1), but no affidavit has been
supplied.
In Rodriguez v. United States, 395 U.S. 327, 340 (1969), the Supreme Court held that the
failure of defense counsel to file a notice of appeal despite being instructed to do so by his client
constitutes per se ineffective assistance of counsel, without regard to the legal merit of any issues
that might be raised on direct appeal. See also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(“We have long held that a lawyer who disregards specific instructions from the defendant to file
a notice of appeal acts in a manner that is professionally unreasonable. This is so because a
defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the
necessary notice. Counsel’s failure to do so cannot be considered a strategic decision; filing a
notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the

14

defendant’s wishes.”) (citation omitted); Ludwig v. United States, 162 F.3d 456, 459 (6th Cir.
1998) (“[T]he failure to perfect a direct appeal, in derogation of a defendant’s actual request, is a
per se violation of the Sixth Amendment.”). The Sixth Circuit has “emphasize[d] . . . that a
defendant’s actual ‘request’ is still a critical element in the Sixth Amendment analysis.” Ludwig,
162 F.3d at 459; see also Regalado v. United States, 334 F.3d 520, 525-26 & n.3 (6th Cir. 2003)
(an expression of a defendant’s “desires” or “wishes” is not equivalent to an express instruction).
Gilkey is not entitled to relief on Claim 1 and is not entitled to an evidentiary hearing, for
two reasons. First, Gilkey discharged his attorney and proceeded pro se at the sentencing
hearing, with Erwin acting only as “elbow counsel.” Because Gilkey waived his right to be
represented by counsel, he cannot complain of ineffective assistance. As the Court of Appeals
has explained:
Holmes represented himself at sentencing, and only had an attorney present as
stand-by counsel. Nonetheless, Holmes complains that his trial counsel, who was
at the sentencing in the role of stand-by counsel, did not object to the calculation
of Holmes’s criminal history score. “[A] defendant who elects to represent
himself cannot thereafter complain that the quality of his own defense amounted
to a denial of effective assistance of counsel.” Faretta v. California, 422 U.S.
806, 834 n.46, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Holmes knowingly and
voluntarily elected to assert his Faretta rights and proceed at sentencing pro se.
He does not challenge that waiver. Because he validly waived his right to
counsel, his claim for ineffective assistance at sentencing fails. “By exercising his
constitutional right to present his own defense, a defendant necessarily waives his
constitutional right to be represented by counsel.” Wilson v. Parker, 515 F.3d
682, 696 (6th Cir. 2008). Even if standby counsel failed to act in some manner,
such failure is an incidental effect of Holmes’s decision to assert his Faretta
rights, and not the basis of an ineffective assistance of counsel claim. See id. at
697 (“To the extent [stand-by counsel] failed to act during trial, [the criminal
defendant] merely suffered the consequences of his decision to proceed pro se.”).
We will not impose upon stand-by counsel the same obligations that an attorney
would have if Holmes were not proceeding pro se.
Holmes v. United States, 281 F. App’x 475, 480-81 (6th Cir. 2008); see also Censke v. United
States, No. 2:14-cv-179, Criminal Case No. 2:08-cr-19, 2014 WL 4542488, at *6 (W.D. Mich.

15

Sept. 11, 2014) (“Censke wants the best of both worlds; the ability to represent himself and when
things go awry to blame his standby counsel. When a defendant exercises his right to represent
himself, he necessarily waives his constitutional right to be represented by counsel. . . . Cenke’s
[sic] standby counsel was appointed to assist Censke not represent him. Therefore, all claims of
ineffective assistance of counsel against standby counsel do not entitle Censke to relief.”);
Fletcher v. United States, No. 3:12-cv-00830, 2013 WL 2237880, at *8 (M.D. Tenn. May 21,
2013) (same).
Second, Gilkey personally filed a timely notice of appeal. Therefore, even if his elbow
counsel had a duty to file a notice of appeal upon request, Gilkey suffered no prejudice.
Claim 1 is without merit and is DISMISSED.
B.

The Alleged Lack of Territorial Jurisdiction (Claim 2)

In Claim 2, Gilkey avers that there was a lack of territorial jurisdiction over the criminal
case. (Am. § 2255 Mot. at PageID 35, Gilkey v. United States, No. 2:14-cv-02924-STA-cgc
(W.D. Tenn.) ECF No. 4.) He explains that “[t]he United States (28 USC; 3002) lack territorial
jurisdiction. The current system of enforcement of the Title 18 of the United States Code
Annotated is repugnant to and violative of Article, 1., Section 8., Clause 17. of the Constitution
and its implementing statute, 40 U.S.C. 255[.]” (Id.)5 This argument is presented, in more

5

The provision in question grants Congress the power

[t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of particular States, and the
Acceptance of Congress, become the seat of the Government of the United States,
and to exercise like Authority over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful Buildings . . . .
U.S. Const. art. I, § 8, cl. 17.
16

detail, in an attachment to the Amended § 2255 Motion. (Attachment 2, Gilkey v. United States,
No. 2:14-cv-02924-STA-cgc (W.D. Tenn.), ECF No. 4-2.)
Claim 2 refers to 40 U.S.C. § 255, which is currently codified at 40 U.S.C. § 3111. That
provision appears in Title 40 of the United States Code, titled “Public Buildings, Property, and
Works.” It has no bearing on Movant’s convictions for violating 18 U.S.C. §§ 922(g), 922(k)
and 506(a)(2)-(3) because those statutes do not require that the offense be committed on federal
property.
Federal jurisdiction over the criminal case was conferred by 18 U.S.C. § 3231, which
provides that “[t]he 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.” Applying this
provision, the Sixth Circuit has flatly rejected similar challenges to the jurisdiction of the federal
courts over violations of federal criminal statutes:
Here, contrary to Bryson’s argument, the district court properly exercised
jurisdiction over his offenses. Although Bryson maintained that his offenses did
not occur within the territorial jurisdiction of the United States, it is clear that 18
U.S.C. § 3231 gives the federal courts original and exclusive jurisdiction over
federal crimes. See United States v. Allen, 954 F.2d 1160, 1165-66 (6th Cir.
1992). The district court indisputably had subject matter jurisdiction over his
indictment for violations of 21 U.S.C. § 841 and 18 U.S.C. § 924(c). Federal
courts have exclusive jurisdiction over offenses against the laws of the United
States under 18 U.S.C. § 3231; the permission of the states is not a prerequisite to
exercise that jurisdiction. See United States v. Sitton, 968 F.2d 947, 953 (9th Cir.
1992).
United States v. Bryson, No. 00-3619, 2001 WL 700816, at *2 (6th Cir. June 15, 2001); see also
United States v. Martin, 318 F. App’x 313, 316 (6th Cir. 2008) (rejecting arguments that
indictment had to allege territorial jurisdiction); United States v. Callan, 72 F. App’x 349, 35051 (6th Cir. 2003) (rejecting argument that federal jurisdiction was lacking over criminal case
involving firing or tampering with vessels because it involved a civil matter in admiralty); United

17

States v. Hamilton, 263 F.3d 645 (6th Cir. 2001) (rejecting a defendant’s contention that
Louisville, Kentucky is outside the jurisdiction of the federal government; “This is a frivolous
argument that ignores the basic principles of federalism. The fact that Kentucky has sovereignty
within its boundaries does not bar the United States from having concurrent jurisdiction to indict
and prosecute Hamilton for federal crimes occurring within those same boundaries.”); United
States v. Mundt, 29 F.3d 233, 237 (6th Cir. 1994) (rejecting as “completely without merit and
patently frivolous” the argument that defendant cannot be prosecuted for income tax violations
because he is solely a resident of Michigan and not of any “federal zone”); United States v.
Schooler, Nos. 3:10-cr-134, 3:12-cv-201, 2012 WL 2814322, 2012 WL 2814322 (S.D. Ohio July
10, 2012) (rejecting argument about territorial limitation of § 922(g)) (report and
recommendation), adopted, 2012 WL 2975207 (S.D. Ohio July 20, 2012).
C.

The Alleged Lack of Jurisdiction Under Article II, § 3 (Claim 3)

In Claim 3, Gilkey argues that there was a “[l]ack of [j]urisdiction [p]ursuant to Article
2)(3) [sic] of the Constitution.” (Am. § 2255 Mot. at PageID 37, id., ECF No. 4; see also
Attachment 3, id., ECF No. 4-3.) Specifically, Gilkey claims that “because his custody and
indictment were achieved in violation of the ‘Take Care Clause’ of Art II § 3 of the U.S.
Constitution[,] the Federal Rules of Criminal Procedure (F.R.C.R.P.) and 28 U.S.C. 516, 547 the
court lacked ‘subject matter jurisdiction’ in his case.” (Am. § 2255 Mot. at PageID 37, id., ECF
No. 4.) Although Gilkey’s argument is difficult to decipher, he appears to mean that his case
was not properly commenced because the FBI did not swear out a criminal complaint.
(Attachment 3 at 2, id., ECF No. 4-3.)
Article II, § 3 of the Constitution provides that the executive “shall take Care that the
Laws be faithfully executed . . . .” This provision vests prosecutorial power in the executive

18

branch of government, see, e.g., In re Aitken Cnty., 725 F.3d 255, 262-63 (10th Cir. 2013), which
includes the United States Attorneys, Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,
561 U.S. 477, 517 (2010); Caldwell v. Cunningham, Nos. 3 10 0288, 3:10-mc-0019, 2010 WL
1170132, at *1 (M.D. Tenn. Mar. 24, 2010); Bonner v. Family Independence Agency, No. 0474574, 2005 WL 3478362, at *8 (E.D. Mich. Dec. 20, 2005). The First Circuit Court of Appeals
has recently rejected the argument advanced by Gilkey:
In a supplemental pro se brief, Aponte–Sobrado claims that because “the
FBI chose not to swear out a complaint in this case, government attorneys lacked
authority under 28 U.S.C. § 547 to seek an indictment or prosecute on behalf of
the ‘United States’” and that a prosecution under such circumstances also violates
the “Take Care” Clause of Article II, Section 3 of the United States Constitution,
and Federal Rules of Criminal Procedure 3 and 4. The record contains no
evidence about whether a criminal complaint was sworn in this case. A
complaint, however, is not a prerequisite to the initiation of a criminal
prosecution:
No complaint is needed ... if a more formal determination of probable
cause is made first. If an indictment has been returned or an information
filed prior to the arrest, a warrant may be issued on this ground alone
pursuant to Rule 9. In such a case, probable cause has already been
established and there is no need for a complaint.
1 Charles Alan Wright et al, Federal Practice and Procedure § 41 (4th ed. 2014)
(footnotes omitted).
United States v. Vizcarrondo-Casanova, 763 F.3d 89, 97 (1st Cir.), cert. denied, 135 S. Ct. 307
(2014) and cert. denied sub nom. Aponte-Sobrado v. United States, 2015 WL 4711578 (U.S. Oct.
5, 2015) and cert. denied sub nom. Diaz-Colon v. United States, 2015 WL 5774556 (U.S. Oct. 5,
2015); see also United States v. Bailey, Criminal No. 04-24, 2014 WL 5761069, at *2 (W.D. Pa.
Nov. 5, 2014) (“In defendant’s case, an indictment was returned against him, thus probable cause
was established, and there was no need for the filing of a complaint.”).
Here, a federal grand jury returned an indictment and a superseding indictment against
Gilkey and, therefore, no criminal complaint was required.
19

Claim 3 is also meritless because the alleged procedural irregularities do not implicate the
subject-matter jurisdiction of the federal courts. Subject-matter jurisdiction refers to a court’s
statutory or constitutional power to adjudicate a case. United States v. Cotton, 535 U. S. 625,
630 (2002). Federal courts have subject-matter jurisdiction over prosecutions alleging violations
of the federal criminal laws. 18 U.S.C. § 3231. Gilkey was charged with violating 18 U.S.C. §§
922(g), 922(k) and 502(a)(2)-(3), each of which is a federal criminal statute. Therefore, the
Court had federal subject-matter jurisdiction.
Claim 3 is without merit and is DISMISSED.
* * * *
The motion, together with the files and record in this case “conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Rule 4(b), § 2255 Rules. The
Court finds that a response is not required from the United States Attorney and that the motion
may be resolved without an evidentiary hearing. See Smith v. United States, 348 F.3d 545, 550
(6th Cir. 2003); Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). Movant’s
conviction and sentence are valid, and, therefore, his § 2255 Motion is DENIED. Judgment shall
be entered for the United States.
IV.

APPEAL ISSUES
Twenty-eight U.S.C. § 2253(a) requires the district court to evaluate the appealability of

its decision denying a § 2255 motion and to issue a certificate of appealability (“COA”) “only if
the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); see also Fed. R. App. P. 22(b).

No § 2255 movant may appeal without this

certificate.

20

A COA may issue only if the petitioner has made a substantial showing of the denial of a
constitutional right, and the COA must indicate the specific issue(s) which satisfy the required
showing. 28 U.S.C. §§ 2253(c)(2) & (3). A “substantial showing” is made when the movant
demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotation marks and citation omitted); see also Henley v. Bell, 308 F. App’x
989, 990 (6th Cir. 2009) (per curiam) (same). A COA does not require a showing that the appeal
will succeed. Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App'x 809, 814-15 (6th Cir.
2011) (same). Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F.
App'x 771, 773 (6th Cir. 2005).
There can be no question that the issues raised in Movant’s Amended § 2255 Motion are
meritless for the reasons previously stated. Because any appeal by Movant on the issues raised
in his Amended § 2255 Motion does not deserve attention, the Court DENIES a certificate of
appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C. §§
1915(a)-(b), does not apply to appeals of orders denying § 2255 motions. Kincade v. Sparkman,
117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255 case, and
thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must
obtain pauper status pursuant to Federal Rule of Appellate Procedure 24(a). Kincade, 117 F.3d
at 952. Rule 24(a) provides that a party seeking pauper status on appeal must first file a motion
in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule
24(a) also provides that if the district court certifies that an appeal would not be taken in good

21

faith, or otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to
proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a) (4)-(5).
In this case, for the same reasons the Court denies a certificate of appealability, the Court
determines that any appeal would not be taken in good faith. It is therefore CERTIFIED,
pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal in this matter would not
be taken in good faith. Leave to appeal in forma pauperis is DENIED.6
IT IS SO ORDERED.
s/ S. Thomas Anderson
S.THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

Date: October 26, 2015.

6

If Movant files a notice of appeal, he must also pay the full $505 appellate filing fee or
file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of
Appeals within 30 days.
22