United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing 334)
filed by the defendant, Thomas Whitlow. The motion was timely
filed less than 1 year after the defendant's conviction
became final. See § 2255(f). The Court's initial
review is governed by Rule 4(b) of the Rules Governing
Section 2255 Proceedings for the United States District
Courts, which provides:
The judge who receives the motion must promptly examine it.
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, the judge must dismiss the motion and
direct the clerk to notify the moving party. 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.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
defendant and four alleged co-conspirators were indicted in
2014 on one count of conspiracy to commit wire fraud in
violation of 18 U.S.C. § 1349, and eleven separate
counts of wire fraud in violation of 18 U.S.C. § 1343.
Filing 51. After a jury trial, the defendant was convicted of
conspiracy and four counts of wire fraud. Filing 237. The
defendant was sentenced on each count to 108 months'
imprisonment, sentences to be served concurrently. Filing
301. The defendant appealed to the U.S. Court of Appeals for
the Eighth Circuit, which affirmed the defendant's
convictions and sentences. United States v. Whitlow,
815 F.3d 430 (8th Cir. 2016). The defendant moves to vacate
his convictions pursuant to § 2255. Filing 334.
defendant's § 2255 motion raises five issues: three
claims for ineffective assistance of counsel, and two
underlying jurisdictional claims. For reasons that will
become apparent, it will be easier to dispose of the
underlying jurisdictional claims before addressing the
ineffective assistance of counsel claims.
Court Jurisdiction over Offense
defendant's first jurisdictional argument is that the
Court lacked jurisdiction over this prosecution because,
among other things, the United States had not accepted
territorial jurisdiction over the lands where the alleged
offense took place. Filing 334 at 17-18. Thus, according to
the defendant, the government "failed to establish and
prove any federal criminal jurisdiction over the locus in
quo." Filing 334 at 18.
source of legislative authority for the wire fraud statute is
the Commerce Clause. United States v. Louper-Morris,
672 F.3d 539, 563 (8th Cir. 2012); see, United States v.
Jinian, 725 F.3d 954, 967-68 (9th Cir. 2013); United
States v. Hook, 195 F.3d 299, 310 (7th Cir. 1999);
United States v. Brumley, 116 F.3d 728, 730 (5th
Cir. 1997). All that is required for federal jurisdictional
purposes is an allegation that the falsehoods composing the
fraud were "transmitted by means of wire, radio, or
television communication in interstate or foreign commerce .
. . ." § 1343.
that reason, the defendant's reliance on Adams v.
United States, 319 U.S. 312 (1943), and United
States v. Prentiss, 206 F.3d 960 (10th Cir. 2000), is
misplaced. In Adams, the defendants were convicted of sexual
assault on a military base, and it was found that the federal
court lacked jurisdiction because the federal government had
not, at the time, completed the process of accepting
jurisdiction over the property. Adams, 319 U.S. at 315. But
this case does not deal with property over which the
government was required to formally accept jurisdiction, and
the Court has original jurisdiction of all violations of
federal law. United States v. Watson, 1 F.3d 733,
734 (8th Cir. 1993); see United States v. Deering,
179 F.3d 592, 597 (8th Cir. 1999). Adams is not applicable
the issue in Prentiss was whether it was necessary, for a
crime prosecuted under the Indian Country Crimes Act, 18
U.S.C. § 1152, to allege that the crime occurred between
an Indian and a non-Indian. 206 F.3d at 966. The Tenth
Circuit held that it was. See Id. at 974; see also
United States v. Graham, 572 F.3d 954, 956 (8th Cir.
2009). But obviously, this case was not prosecuted under the
Indian Country Crimes Act. Instead, wire fraud-and conspiracy
to commit wire fraud-are "within the extensive reach of
the Commerce Clause[, ]" Louper-Morris, 672 F.3d at 563,
and the federal courts have original jurisdiction over the
offense, see Watson, 1 F.3d at 734.
defendant also suggests that the indictment was defective for
failing to allege a material element of the offense. Filing
334 at 18, 20-21. But the sufficiency of the indictment was
challenged on direct appeal; the Eighth Circuit's
"review of the indictment shows it includes all the
elements of the crimes charged." Whitlow, 815 F.3d at
433. And claims which were raised and decided on direct
appeal cannot be relitigated on a motion to vacate pursuant
to § ...