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United States v. Ramer

United States District Court, E.D. Kentucky, Central Division, Frankfort

November 26, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
HENRY IRVING RAMER, Defendant/Movant.



         In May 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. at 1.

         On 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).

         Section 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).

         In 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)).

         Ramer's 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.

         I. Grounds One and Two

         In 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 at 5-6.

         Similarly, 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 defect. Id.

         In 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.

         The law 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).

         Ramer 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.

         Ramer 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.

         Ramer 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 ...

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