United States District Court, E.D. Kentucky, Central Division, Frankfort
A. INGRAM UNITED STATES MAGISTRATE JUDGE.
2015, a federal jury found petitioner Henry Irving Ramer
(“Ramer”) guilty of multiple counts of mail
fraud, along with one count of conspiracy to commit money
laundering and one count of using deceptive devices in
connection with the sale of a security. D.E. 398. He was
sentenced in September 2015 to a total term of 156 months of
imprisonment, to be followed by three years of supervised
release. Id. The Court of Appeals upheld his
conviction and sentence in a lengthy published opinion issued
February 26, 2018. D.E. 561. As that Court explained,
“This case involves a group of individuals who schemed
to defraud investors through the marketing of a series of
spurious oil and gas drilling projects.” Id.
November 8, 2018, Ramer placed in the prison mail a timely
filed motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody.
D.E. 591. His motion form is accompanied by two memoranda.
D.E. 591-1, 591-3. The Court recognizes that Ramer is
proceeding pro se, without the assistance of an
attorney. The Court construes pro se motions more
leniently than motions prepared by lawyers. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Castro v. United
States, 540 U.S. 375, 381-83 (2003).
2255 permits a federal prisoner to seek habeas relief on the
basis that his sentence violates the Constitution or federal
law, the federal court lacked jurisdiction to impose such a
sentence, or the sentence exceeds the maximum authorized by
law. 28 U.S.C. § 2255. To prevail on a § 2255
motion alleging constitutional error, a defendant must
establish that the error had a “substantial and
injurious effect or influence on the proceedings.”
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (citing Brecht v. Abrahamson, 507 U.S. 619,
637 (1993)). A § 2255 movant bears the burden of proving
his or her allegations by a preponderance of the evidence.
McQueen v. United States, 58 Fed.Appx. 73, 76 (6th
Cir. 2003) (per curiam). The Rules also require the
petitioner to specify all available grounds for relief and
“state the facts supporting each ground.” Rules
Governing Section 2255 Cases, Rule 2(c).
accordance with local practice, the matter was assigned to
the undersigned to conduct a preliminary review. See
Rules Governing Section 2255 Cases, Rule 4. Under such
review, “[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.” Id. Also, by statute, the
Court may dismiss a § 2255 motion when “the files
and records of the case conclusively show that the prisoner
is entitled to no relief.” 28 U.S.C. § 2255(b).
Dismissal may be warranted, for example, when 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.” MacLloyd v. United States, 684
Fed.Appx. 555, 559 (6th Cir. 2017) (quoting Arredondo v.
United States, 178 F.3d 778, 782 (6th Cir. 1999)).
motion must be dismissed upon initial review. His arguments
are either legally frivolous, insufficiently specific or
unsupported by any stated facts. “[A] court need not
elaborate or give reasons for rejecting claims which it
regards as frivolous or totally without merit.”
Sumner v. Mata, 449 U.S. 539, 548 (1981); see
also United States v. States, 242 Fed.Appx. 362, 363
(7th Cir. 2007). Nevertheless, for review purposes, the Court
will briefly address the merits of Ramer's arguments when
practicable to do so.
Grounds One and Two
Ground One of his § 2255 motion, Ramer asks, “Can
the United States and their Agents prosecute an individual
without a delegation of authority order?” D.E. 591 at
4. Ramer argues that the record contains no “duly
constituted delegation of authority order, ” and his
counsel was ineffective for failing to investigate this
alleged jurisdictional shortcoming. Id. Ramer's
theory is that the Court lacks jurisdiction to prosecute
absent “a duly constituted delegation of authority
order.” D.E. 591-1 at 1; see also D.E. 591-3
Ground Two alleges this Court lacked subject-matter
jurisdiction over his prosecution because there were no
“implementing regulations supporting the charging
statutes.” D.E. 591 at 5. He argues his counsel was
ineffective for failing to investigate this jurisdictional
support of these theories, Ramer offers a series of arguments
similar to those made in “tax protester” cases.
D.E. 591-1 at 2. For example, he argues that the statutes
under which he was convicted do not impose a
“duty” on him, and that “the
Secretary” must issue implementing regulations to
impose such a duty. Id. These arguments are clearly
aimed at the tax code. In fact, Ramer's memorandum
explicitly references the “Internal Revenue Code,
” even though Ramer was not convicted of tax crimes.
Id. at 3. Ramer's memorandum contains what one
Court has described as “shop-worn tax-protestor
arguments that courts have consistently rejected for over a
century” as “unbelievably frivolous.”
United States v. Bodley, 674 Fed.Appx. 576, 577 (7th
Cir. 2017). And, in this non-tax criminal case, Ramer's
frivolous arguments are not even on point.
is clear that there is no need for the government to obtain a
delegation of authority order to prosecute federal crimes.
See United States v. Simpson, 845 F.3d 1039, 1069
n.5 (10th Cir.) (describing a motion seeking a copy of a
“Certified Delegation of Authority Order” as
“frivolous”), cert. denied, 138 S.Ct.
140 (2017). To the extent that Ramer argues that the federal
criminal code is unconstitutional because of supposed
irregularities in its enactment, this argument too is
“frivolous.” United States v. Collins,
510 F.3d 697, 698 (7th Cir. 2007); Bodley, 674
Fed.Appx. at 577. Federal district courts have exclusive
original jurisdiction over all offenses against the laws of
the United States. United States v. Studley, 783
F.2d 934, 937 (9th Cir. 1986) (citing 18 U.S.C. § 3231).
Criminal violations do not need implementing regulations to
be effective. United States v. Warner, 194 F.3d 1319
(9th Cir. 1999) (table).
also argues that “the crimes listed in the indictment
are not stand alone statutes;” rather, he was
prosecuted “for a penalty statute.” D.E. 591-1 at
6. This is manifestly incorrect. The statutes identified in
the Superseding Indictment, 18 U.S.C. §§ 1341 and
1956(h) and 15 U.S.C. § 78j(b), clearly prohibit the
charged conduct. Each statute imposes a duty that the jury
eventually found Ramer violated. On a related note, the
Superseding Indictment did not “fail to charge an
offense.” D.E. 591-3 at 4. Rather, it clearly
identified the charged crimes. See D.E. 51.
further argues that his due process rights were violated
because his prosecution “did not begin with the
affidavit of criminal complaint as required by the Fourth
Amendment and Rules 3 and 4 of the Federal Rules of Criminal
Procedure.” D.E. 591-1 at 7. But a prosecution may be
initiated by indictment, which was the case here. Fed. R.
Crim. P. 7 (stating that felonies must be prosecuted by
indictment). Ramer argues that the Fourth Amendment requires
prosecutions to begin with a criminal complaint, but he
ignores that the Fifth Amendment provides for prosecution by
grand jury indictment. Id. at 8.
argues that the Court violated Rule 5, which pertains to
initial appearances on complaints, because the Court did not
advise him concerning the complaint and affidavit. D.E. 591-1
at 8. But, again, there was no complaint in this case. Rule 5
did not apply because the prosecution commenced by