Free Response to Motion - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00407-PSF Civil Action No. 07-cv-02446-PSF UNITED STATES OF AMERICA, Plaintiff-Respondent, v. BRETT FLOYD YEOMANS, Defendant-Movant. ______________________________________________________________________________ GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY ______________________________________________________________________________ The United States of America, by and through Troy A. Eid, United States Attorney, and Andrew A. Vogt, Assistant United States Attorney, hereby responds to Defendant-Movant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, and states as follows: BACKGROUND On May 22, 2004, Colorado State Trooper Marty Smith was summoned to the dispatch office in the Moffat County Justice Center that the State Patrol shares with the Moffat County Sheriff's Office and the Craig Police Department. [Doc. 40 at 8.] Trooper Smith was informed that the dispatch office had received a call from the Rio Blanco County Sheriff's Office that a Meeker, Colorado, police officer had provided a tip that three men, who were driving in a gold Jeep Cherokee from Meeker to Craig on Highway 13 (a distance

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of 45 miles), might be transporting narcotics. [Id. at 8-9, 42-43.] The occupants of the vehicle were identified as Brett Yeomans, Steven Barley, and Brian Johnson. [Id.] Before leaving the dispatch office to look for the vehicle, Trooper Smith determined that Yeomans was the subject of two restraining orders protecting a boy and a woman, which Trooper Smith understood to have been issued in connection with domestic violence. [Id. at 10-11, 75.] Trooper Smith then proceeded southbound on Highway 13 in search of the vehicle, which he soon saw traveling northbound at 82 mph in a speed zone posted for 65 mph. [Id. at 12, 19.] Trooper Smith stopped the Jeep Cherokee for speeding at 3:24 p.m. and was joined by Deputy Sheriff Dan Burke as he did so. [Id. at 20-22.] Deputy Burke was primarily responsible for assuring the safety of the officers during the encounter. [Id. at 24, 92, 94.] As the officers approached the vehicle, both saw two long guns in cases on the back seat and some shotgun ammunition on the dashboard in front of the passenger (who was later identified as Brett Yeomans). [Id. at 23, 25, 94.]1 It was Trooper Smith's normal procedure, when he observed firearms in a vehicle he had stopped, to remove the weapons from the vehicle and inspect them to ensure that they were legal weapons and were not loaded. [Id. at 23-24, 29-30, 39, 40, 57, 83, 84-86.] It was also Trooper Smith's normal procedure, when firearms are seen to be present in a stopped vehicle, to identify all occupants of the vehicle and run criminal histories on them in order to determine whether the occupants are in legal possession of the weapons. [Id. at 29, 40, 86.] Although Trooper Smith was concerned that

The Jeep Cherokee was occupied by only two persons, Steven Barley and Brett Yeomans. 2

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the guns in the vehicle might be loaded, [id. at 56-57, 83], he decided to defer inspection of the firearms until later in the traffic stop because Deputy Burke was present to watch the vehicle and its occupants until Trooper Smith could complete his paperwork and return to the vehicle undistracted. [Id. at 24, 30, 61.] The driver, Steven Barley, provided Trooper Smith with his driver's license and vehicle registration, and when asked why the men were speeding, Yeomans responded that he had a medical emergency ­ i.e., that his nephew had been struck by a car and was in a hospital in Craig. [Id. at 25.] When the driver was asked who the guns belonged to and what they were for, the passenger (Yeomans) answered that the guns were his and that he was transporting them to his residence in Craig for storage. [Id. at 26.] Trooper Smith then informed Barley that he would be issued a citation for speeding and returned to his patrol car with Barley's driver's license to request an additional records check and to write the citation. [Id. at 27-30.] Trooper Smith was informed at 3:33 p.m. that the further check of records pertaining to Barley and the vehicle had not produced adverse information. [id. at 50, 67.] While Trooper Smith was writing the citation, Deputy Burke advised him that Yeomans could not provide his injured nephew's surname. [Id. at 29-30, 95-96.] Both officers thought Yeomans' inability to provide the surname of his nephew was odd and, based on his training and experience in interdiction, Trooper Smith became suspicious that "there was something wrong." [Id. at 31-32.] The officers therefore approached the Jeep Cherokee a second time to inquire further. [Id.] The officers found Yeomans to be very

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nervous, fidgety, and unable to speak in complete sentences and confirmed that Yeomans did not know the surname of his nephew. [Id. at 31-32, 94.] Trooper Smith then asked the men if they were carrying narcotics or a large quantity of cash, and both replied that they were not. [Id. at 32.] While talking to the Barley and Yeomans during this second contact, Trooper Smith ascertained Yeomans' identity. [Id. at 36-37, 41-42, 73-74.] Trooper Smith then asked both men for their consent to search the vehicle and both consented to such a search. [Id. at 32, 97.] Barley and Yeomans were asked to exit the vehicle and both did so. [Id. at 32, 97, 107, 116.] Trooper Smith requested the assistance of a canine unit to search the vehicle. [Id. at 33.] Upon exiting the vehicle, Deputy Burke patted Yeomans down for purposes of officer safety and another officer, Deputy Sheriff Todd Wheeler, who had by then arrived on the scene, patted-down Barley. [Id. at 33, 35, 36, 78-79, 97, 98, 99, 110.] During the pat-down, Deputy Burke discovered suspected methamphetamine, suspected marijuana, and various items of drug paraphernalia in Yeomans' pockets. [Id. at 99, 110-11.] Yeomans was then placed in handcuffs and arrested at 3:42 p.m., approximately 18 minutes after the Jeep Cherokee was stopped by Trooper Smith. [Id. at 49, 101.] During a second search of Yeomans' person at the jail to which he was transported after his arrest, other drug paraphernalia and some .22 caliber ammunition were found in his pockets. [Id. at 101-02.]

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During the search of the vehicle following Yeomans' arrest, in addition to the firearms and ammunition seen by the officers, various drugs and drug paraphernalia were found and seized. [Id. at 35.] On September 9, 2004, a federal grand jury in the District of Colorado handed down an indictment which charged Brett Floyd Yeomans with three counts of possession of firearms and ammunition by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1), as follows: · Count I ­ possession of a rifle and a shotgun by Yeomans, who was previously convicted of attempted escape and theft in the courts of the State of Colorado; Count II ­ possession of ammunition for a rifle and shotgun by Yeomans, who was previously convicted of felonies as set forth in Count I; and Count III ­ possession of ammunition for a rifle by Yeomans, who was previously convicted of felonies as set forth in Counts I and II.

·

·

[Doc. 1.] On December 30, 2004, Yeomans filed a Motion to Suppress Statements and Evidence in which he alleged that his arrest on May 22, 2004, and the search of the vehicle in which he was a passenger on that occasion, were unlawful under the Fourth Amendment. [Doc. 17.] On the basis of these allegations, Yeomans requested this Court to suppress all statements and evidence derived from the arrest and the search of the vehicle. [Id.] On January 6, 2005, the government filed a response to Yeomans' suppression motion. [Doc. 21.] On February 17, 2005, the parties filed supplemental authorities in support of their positions. [Docs. 26, 28.] On February 18, 2005, the Court conducted an evidentiary hearing 5

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on the suppression motion [see Doc. 40], at the conclusion of which it denied the suppression motion [id. at 136-38]. On April 18, 2005, a superseding indictment was filed in which the original firearmsrelated charge in Count III of the original indictment was deleted and replaced by a new charge of possession of 5 grams of a mixture or substance containing a detectable amount of methamphetamine by a person previously convicted of a drug offense, in violation of 21 U.S.C. § 844(a) and (c). [Doc. 36.]2 On May 9, 2005, following the severance of Count III [Docs. 43, 64], a jury trial commenced on the charges of possession of firearms and ammunition by a prohibited person, Counts I and II of the Superseding Indictment [see Docs. 98, 99, 100]. On May 11, 2005, Yeomans was found guilty of both charges. [See Doc. 76.] On May 17, 2005, Yeomans pleaded guilty to the drug charge, Count III of the Superseding Indictment. [See Docs 74, 76, 82.] On December 26, 2005, Yeomans filed a Motion for New Trial and Motion for Reconsideration of Motion to Suppress in which he (1) sought a new trial on the firearmsrelated counts, Counts I and II, based on an allegation that he did not understand that he had the right to testify at his original trial; and (2) requested the court to reconsider its denial of his suppression motion on February 18, 2005, based on an argument that a similar motion

The Superseding Indictment also contained amendments to the charges set forth in Counts I and II of the original indictment, including the substitution of possession of .22 caliber ammunition for shotgun ammunition in Count II. 6

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was granted in a related state case against another defendant. [Doc. 102.] On January 4, 2006, the government responded that both motions were untimely under Fed.R.Crim.P. 33 and 12, respectively, and that both motions were, in any event, without merit. [Doc. 104.] Following an evidentiary hearing and argument by counsel on January 9, 2006, [Doc. 117 at 1-37], the Court denied the motion for a new trial and the motion for reconsideration of its denial of the suppression motion [id. at 37-40].3 At the conclusion of the motions hearing on January 9, 2006, the Court imposed concurrent sentences of 100 months of imprisonment on Counts I and II and 24 months of imprisonment on Count III. [Id. at 44-45; Doc. 108.] Judgment was entered on the Court's docket on January 19, 2006. Yeomans' Notice of Appeal and Amended Notice of Appeal were filed on January 24, 2006. [Docs. 109, 110.] On January 5, 2007, the judgment of this Court was affirmed on appeal. United States v. Yeomans, 211 Fed. Appx. 753 (10th Cir. 2007). Yeomans' subsequent petition to the Supreme Court for certiorari was denied on May 14, 2007, Yeomans v. United States, 127 S. Ct. 2282 (2007), at which time the judgment of this Court became final. On November 21, 2007, Movant filed a motion pursuant to 28 U.S.C. § 2255 collaterally attacking the judgment of this Court and the Court has ordered the government to respond thereto.

The court noted that it had a transcript of the state suppression hearing before it, and was otherwise aware of the different result in the state case, when it denied Yeomans' suppression motion in the instant case. [See Doc. 117 at 58, 108.] 7

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DISCUSSION Yeomans (hereinafter "Movant") now raises in his § 2255 motion five claims, all of which are interrelated, interdependent, and explicitly premised on an elaborate argument that this Court entirely lacks jurisdiction pursuant to 18 U.S.C. § 3231 to hear federal criminal cases and to sentence defendants who are convicted in such cases to terms of imprisonment because of alleged defects in the enactment and signing of the 1948 legislation underlying § 3231, Public Law 80-772. Movant's § 2255 motion and supporting documentation appear to be essentially copies of a pleading and supporting documentation that have been circulating among federal prisoners for the past few years, which have been filed in numerous district courts and uniformly rejected by those courts. Specifically, Movant asserts the following claims: · Claim One: that "Public Law 80-772, Act of June 25, 1948, Ch. 645, Section 1, 62 Stat. 683 et seq., is unconstitutional and void because H.R. 3190 never passed both Houses [in the same form] as required by Article I, § 7, Cl. 2"; · Claim Two: that "permitting post-adjournment legislative business pursuant to H. Con. Res. 219," including the signing of enrolled bills by the presiding officers of the Senate and House, "violated the Quorum, Bicameral and Presentment requirements of Article I of the Constitution"; · Claim Three: that the "post-adjournment signing of H.R. 3190 by single officers of the House, presentment to and approval thereof by the President pursuant to H. Con. Res. 219 violated provisions of the Const[itution]";

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·

Claim Four: that "a purported bill signed by the officers of both Houses of Congress and presented to the President post-adjournment and in absence of quorums, which was not certified as truly enrolled nor the enrolled bill in fact, a clear violation of Title 1, U.S.C. § 106, House Rules and Precedents prohibiting such acts, rendered the bill signed into Public Law 80-772 null and void"; and

·

Claim Five: that this Court's "order committing Petitioner to Executive custody pursuant to Section 3132 of the unconstitutional Public Law 80-772 were [sic] issued ultra vires, are [sic] unconstitutional and coram non judice, and [Movant's] imprisonment is unlawful."

All five of Movant's claims are procedurally barred in a collateral attack under § 2255, and all are entirely without merit. A. Movant's claims are procedurally barred.

The Supreme Court has expressly held that, once a defendant's chance to appeal an issue has been waived or exhausted, a court faced with a subsequent collateral attack is entitled to presume that he stands fairly and finally convicted, especially when, as here, "he already has had a fair opportunity to present his federal claims to a federal forum." United States v. Frady, 456 U.S. 152, 164 (1982). See United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) ("[Section] 2255 is not available to test the legality of matters which should have been raised on appeal"), cert. denied, 487 U.S. 1222 (1988); Bousley v. United States, 523 U.S. 614, 621 (1998) (Section 2255 provides "an extraordinary remedy and will not be allowed to do service for an appeal").

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Here, Movant could have asserted in his direct appeal all of the allegations and issues he now seeks to raise in his collateral attack under § 2255, but he did not do so. Indeed, the legislative defects he alleges supposedly occurred nearly 60 years ago, during the administration of President Truman, and the claims he now asserts have been filed in numerous district courts by numerous prisoners for several years now. "Generally, a movant [under § 2255] is barred from raising an alleged error affecting his conviction or sentence for the first time on collateral review unless he can show both cause for the default and actual prejudice." United States v. Wiseman, 97 F.3d 975, 979 (10th Cir. 2002) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)); see also United States v. Bailey, 286 F.3d 1219, 1223 (10th Cir.), cert. denied, 537 U.S. 877 (2002). Actual prejudice is a demanding standard which requires the defendant to carry a burden "significantly higher" than he would be required to satisfy on direct review under the plain error standard. Frady, 456 U.S. at 166. "[Section] 2255 is not available to test the legality of matters which should have been raised on appeal." Allen, 16 F.3d at 378; Bousley, 523 U.S. at 621 ( "[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either `cause' and actual prejudice, or that he is actually innocent"). Here, Movant makes no attempt whatsoever to demonstrate cause and prejudice to excuse his procedural default or actual innocense notwithstanding the jury's verdict to the contrary. Accordingly, Movant's claims are procedurally barred from being raised in a collateral attack under § 2255 against the judgment of this Court. See United States v. McCuiston, 2007 WL 2688502, at *4 (S.D. Tex. Sept. 12, 2007) (claim that court lacked jurisdiction due to

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improprieties in the passage of Public Law 80-772 are procedurally barred because they were not raised on appeal and the movant demonstrated neither cause and prejudice nor actual innocence in order to overcome the procedural bar)4. B. Movant's claims are without merit.

The claims Movant now asserts do not pertain to his particular case or situation, but are "boiler plate" claims which have all been asserted previously in numerous federal courts by numerous defendants and, without exception, have all been found to be completely without merit. Indeed, the District Court for the Eastern District of Pennsylvania recently addressed one of these now-common "boiler plate" motions that have been appearing on federal court dockets and joined numerous other courts in finding that the claims, in their various forms, are "wholly without merit": The argument posits that the Speaker of the House and the President of the Senate allegedly met in one of their private offices [after an allegedly sine die] recess and signed Public Law 80-772 into law without the approval of their respective bodies. From a review of other cases in which this basic argument [that the enactment of Public Law 80-772 was fatally defective] appears, there are also variations on this scenario to the effect that the versions of Public Law Number 80-772 adopted by the Senate and the House of Representatives were allegedly not completely identical, and that, therefore, the statute was enacted in an unconstitutional manner. From a review of the pertinent case law, there appear to be even other additional variations on this argument, including stating that Congress's record-keeping concerning the events of June 25, 1948 was allegedly unclear and confusing. Petitioners such as Mr. Felipe theorize (and, hence, allege) that something deceptive happened in Congress that day. Accordingly, Mr. Felipe (like a host of other habeas petitioners) argues that Public Law 80-772
4

Movant here does not also allege that the failure of his counsel to raise the claims Movant now raises constituted ineffective assistance of counsel in violation of his Sixth Amendment right to counsel. Rather, Movant limits his claims to a direct attack on the adherence of the 80th Congress to the requirements of the Constitution and the rules of the Congress itself pertaining to the passage and signing of federal legislation. 11

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was not enacted in a constitutional manner and, as a result, he may not be held by federal authorities. These allegations are without a shred of validity. United States v. Felipe, 2007 WL 2207804, *1 (E.D. Pa. Jul. 30, 2007) (slip copy). The United States District Court for the Eastern District of Kentucky has traced the genesis of this "recess" story to a letter written by a Congressional clerk on June 28, 2000. That court did not discuss the context of the letter, except to say that it described an allegedly unusual pattern of Congressional adjournments in June 1948. It seems that somehow this letter led to the "recess" rumor, which subsequently has spread unchecked among prisoners and jailhouse lawyers throughout the country. See Mullican v. Stine, No. 07-CV-129-KKC, 2007 WL 1193534 (E.D. Ky. Apr. 23. 2007); Campbell v. Gonzalez, No. 07-CV-36-GFVT, 2007 WL 1035021 (E.D. Ky. Mar. 29, 2007); Goncalves v. Gonzalez, No. 06-CV275-GFVT (2007 WL 628142 (E.D. Ky. Feb. 26, 2007). Id. at *2 Rather than repeat the efforts of the many courts which have provided thorough and detailed analysis of these "boiler plate" claims, undersigned counsel believes it to be sufficient to simply quote verbatim herein portions of some of the more recent, thorough and cogent of these analyses: . . . [Movant] McCuiston's claim regarding the invalidity of 18 U.S.C. § 3231 is without merit. As noted, McCuiston claims that the statute used to indict and convict him was not validly enacted and thus that the Court had no jurisdiction over his criminal case. Specifically, McCuiston claims that the bill that eventually became Public Law No. 80-772 never passed both houses of Congress in the same version. He contends that the bills were acted upon by the House, but not the Senate, before Congress adjourned and that the House version of the bill died at adjournment. In support of his claim, McCuiston attaches a large number of documents purportedly supporting his factual recitation of the facts [sic]. He also relies heavily on Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974) and, in particular, on the text of two footnotes in the appendix to that opinion. (See D.E. 133 at 1417 & nn.8-9.) The text of one of those footnotes describes the adjournment in 12

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July 1947 (after the House passed the bill that would become Public Law 80-772, but before the Senate did) as follows: The Senate and House of Representatives adjourned on July 27, 1947 under a "conditional final adjournment" resolution, S. Con. Res. 33; 93 Cong. Rec. 10400. Pursuant to the resolution, the two houses were to stand in adjournment until January 2, 1948, unless recalled into a session earlier by specified Senate and House leaders. In effect, the adjournment was a sine die adjournment, not an intrasession adjournment. Kennedy, 511 F.3d 430, Appx. at n. 4. When Congress adjourns sine die, unpassed bills die of their own accord. Thus, the footnotes in Kennedy appear to lend some credence to McCuiston's arguments. But those footnotes must be read in context. It is clear from the context that the intended meaning of those words was that the July 1947 recess was not an intrasession recess (which was what the rest of the Appendix referred to), but an inter session recess. That is, although the term "sine die" is used in the footnotes, it was intended to convey that a session of Congress was ending. It should not be read as McCuiston reads it, to mean that the entirety of the Congress (i.e., both sessions of Congress) ended at the time. Instead, only one of the two sessions of Congress ended. The text where the footnotes occur make[s] this clear, too, because it indicates that footnotes 4 and 5 refer to the 1st session of the 80th Congress, and the 2nd session of the 80th Congress, respectively. Taken in context, those footnotes cannot be read literally to mean that there was an adjournment sine die of that entire Congress, such that all pending bills died. Moreover, the 80th Congress did not adjourn sine die in July 1947. When the first session adjourned, it did so to a date certain, not sine die. See Kennedy, 511 F.2d 430, Appx. at n. 4 (Congress adjourned in July 1947 until January 2, 1948). Accordingly, the Court finds no merit in McCuiston's contentions. The Court further notes that numerous other district courts have rejected the same or similar argument[s] raised by § 2255 movants, including two district judges of the Southern District of Texas. See United States v. Martinez, [2006 WL 1293261] (S.D. Tex. May 6, 2006) (unpublished) (same argument is invalid and erroneous]; Derleth v. United States, [2006 WL 1804618] (S.D. Tex. Jun. 27, 2006) (unpublished) (same; also noting that, "even if 18 U.S.C. § 3231 was flawed, legislation that pre-dated § 3231 would have operated to give the Court jurisdiction over federal crimes"). . . .

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Additionally, the Court finds persuasive the government's argument in its response [to McCuiston's § 2255 motion] that the "enrolled bill rule" requires rejection of McCuiston's claim. In short, that rule provides that an attested "enrolled bill" ­ one signed by the leaders of the House and Senate ­ establishes that Congress passed the text included therein in a constitutional manner and it "should be deemed complete and unimpeachable." Public Citizen v. United States District Court for the District of Columbia, 486 F.3d 1342, 1343 (D.C. Cir. 2007) (quoting Marshall Field & Co. v. Clark, 143 U.S. 649, 672-73 (1892)). In Public Citizen, the District of Columbia Circuit Court of Appeals held that a district court had properly dismissed a constitutional challenge to the Deficit Reduction Act of 2005 premised on the ground that the statute was invalid because the bill that was presented to the President did not pass both chambers of Congress in the exact same form. 486 F.3d at 1343-45. The Court explained the rule, based on Marshall Field, as follows: "It is not competent for [a party raising a bicameralism challenge] to show, from the journals of either house, from the reports of committees or from other documents printed by authority of Congress, that [an] enrolled bill" differs from that actually passed by Congress. [Marshall Field, 143 U.S.] at 680. The only "evidence upon which a court may act when the issue is made as to whether a bill . . . asserted to have become a law, was or was not passed by Congress" is an enrolled act attested to by declaration of "the two houses, through their presiding officers." Id. at 670, 672. An enrolled bill, "thus attested," "is conclusive evidence that it was passed by Congress." Id. at 672-73. "[T]he enrollment itself is the record, which is conclusive as to what the statute is . . . ." Id. at 675 (internal quotation marks omitted). 48 F.3d at 1350. This rule mandates that this Court accept as conclusive Public Law 80-772, and reject McCuiston's request that the Court look behind the bill at the Congressional actions taken on it while pending. Instead, the Court must treat the text in the enrolled bill as "complete and unimpeachable." Public Citizen, 486 F.3d at 1313 (quoting Marshall Field, 143 U.S. at 672-73). Notably, the Seventh Circuit Court of Appeals recently utilized the enrolled bill rule to reject a claim identical to the one raised by McCuiston. See United States v. Miles, 2007 WL 1958623, *1 (7th Cir. Jul. 3, 2007) (citing Marshall Field and Public Citizen, supra).

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In short, the "enrolled bill rule" makes it unnecessary to review [McCuiston's] contentions concerning legislative irregularities, and, in any event, it appears that the law challenged by McCuiston was properly enacted into law. Moreover, as noted [by the court in Delreth] and other courts, see, e.g., United States v. Risquet, 426 F.Supp.2d 310, 311-12 (E.D. Pa. 2006), even if the 1948 amendment to § 3231 were defective, this Court would nonetheless retain jurisdiction over McCuiston's case because the predecessor statute to § 3231 also provides for such jurisdiction. Delreth, supra, 2006 WL 1804618, at *4. United States v. McCuiston, 2007 WL 2688502, *6-8 (footnotes omitted). [Movant Castaneda] alleges that 18 U.S.C. 3231, vesting the federal district courts with original jurisdiction over "all offenses against the laws of the United states" is null and void and unconstitutional . . . because they were "never enac[t]ed into positive law . . . ." These arguments are without merit. Public Law 80-772 was the provision that enacted 18 U.S.C. § 3231, which reads as follows: "The 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. Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof." 18 U.S.C. § 3231. United States v. Castaneda, 2007 WL 3094377, at *5-6 (W.D. Ark. Oct. 19, 2007) (slip copy). [T]he July 1947 recess was not an intrasession recess, but an intersession recess; hence the adjournment was not sine die, so as to kill all unpassed bills. In addition, the July 1947 adjournment was not sine die because it was to a date certain (an adjournment sine die meaning [] the ending of a session without setting a date certain to reconvene. The July 1947 session of Congress was adjourned until January 2, 1948, which is a date certain; thus, the adjournment was not sine die.) Consequently, the adjournment after the House passage did not kill the bill, and [Movant] Castadena's argument to the contrary is clearly without merit and should be rejected. Similarly, in Derleth v. United States, [2006 WL 1804618] (S.D. Tex. Jun. 27, 2006) (unpublished) . . . , the movant contended that the adjournment after the first session of the 80th Congress, in July of 1947, killed the House bill and another version of the bill was later passed by the Senate; however, he said, the bill was never lawfully passed by both chambers. The district court for the Southern District of Texas observed that there was no constitutional requirement that bills passed by one chamber of Congress before an inter-session adjournment of the same Congress be voided, and the rules of Congress, both currently and in the 80th Congress, suggest that legislative 15

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business generally continues between sessions of the same Congress as though no adjournment had taken place. See Senate Rule XXXII, S. Doc. No. 80-11, at 44 (1947) and Rules of the House of Representatives Rule XXVI, H.R. Doc. 70-769, at 433 (1047) (referring to unfinished business before committees, but discussing other business in notes accompanying the rule). Furthermore, the Court explained, even if 18 U.S.C. § 3231 was flawed, legislation that pre-dated this statute would have operated to give the federal courts jurisdiction over federal crimes. As a result, Castadena's claims concerning the validity of Section 3231 and its enacting legislation, Public Law 80-772, are without merit for this alternative reason as well. Id. at *6 (emphasis added). Thus, in the instant case, Movant Yeomans has filed a "boiler plate" § 2255 motion which is similar, if not identical, to motions that have been filed recently by "a host of prisoners" in numerous federal courts. His § 2255 motion is premised entirely on the legal equivalent of an "urban legend" or similar modern myth based on inaccurate information and erroneous conclusions. These "boiler plate" claims have been held to be entirely without merit in every court in which they have been presented. See, e.g., United States v. Potts, 2007 WL 3036847 (3d Cir. Oct. 18, 2007) (unpublished) (§ 3231 was "properly enacted and is binding" and argument in habeas proceeding to the contrary is frivolous); United States v. Siegelman, 2007 WL 1284276 (M.D. Ala. Apr. 30, 2007) (unpublished) (same; collecting cases); United States v. Barren, 219 Fed. Appx. 560, 563 (7th Cir. Mar. 21, 2007) (unpublished) (argument that § 3231 was never enacted is frivolous); Little v. Levi, 2007 WL 4255265, at *1 (E.D Pa. Nov. 29, 2007) (unpublished) (same; collecting cases ("even the briefest of forays into the electronic databases available for legal research yields a long list of judicial opinions that have considered and rejected [this argument])); United States v. Mayfield, 2007 WL 1875867, *3-4 (E.D. Tex. Jun. 27, 2007) (unpublished) (slip copy); United States v. Risquet, 426 F.Supp.2d 310, 311 (E.D. 16

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Pa. 2006) (the 1948 amendment to § 3231 passed both houses of Congress and was signed into law by President Truman on June 25, 1948, and the amendment and statute was "properly enacted and binding"); Jones v. Unknown Warden, 2006 WL 389833 (E.D. Mo. Feb. 17, 2007) (unpublished); United States v. Lawrence, 2006 WL 250702 (N.D. Ill. Jan 27, 2006) (unpublished); Rodriguez v. Levi, 2007 WL 1703359, *2 n. 3 (E.D. Pa. Jun. 11, 2007) (slip copy); United States v. Delgado-Garcia, 374 F.3d 1337, 1341-42 (D.C. Cir. 2004); United States v. Mims, 2006 WL 2559534, *4-5 (E.D. Tex. Sep. 1, 2006) (slip op.); United States v. Hoskins, 2006 WL 1044269, *5 (E.D. Ky. Apr. 19, 2006) (unpublished) (citing United States v. Casey, 2005 WL 2114059, *4 (W.D. Tenn. Aug. 30, 2005) (unpublished) (rejecting allegation that § 3231 was not positive law and was not properly enacted by Congress)); United States v. Charles, 2002 WL 31056548, *4 (D. Kan. Sep. 9, 2002) (unpublished) (rejecting allegation that Title 18, U.S.C. was never properly enacted into positive law)); United States v. Davis, 2006 WL 89505, *2, *3 (D. S.C. Jan. 12, 2006) (unpublished) (recognizing the creation of § 3231 by the 1948 act and its apparent validity).

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Case 1:04-cr-00407-REB

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CONCLUSION Based on the foregoing facts and law, Movant's motion pursuant to 28 U.S.C. § 2255 is frivolous and should be denied and the related civil case dismissed. Respectfully submitted, TROY A. EID United States Attorney By: s/Andrew A. Vogt ANDREW A. VOGT Assistant U. S. Attorney Colorado Bar # 004371 1225 17th Street, Suite 700 Denver, CO 80202 Phone: 303-454-0100

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CERTIFICATE OF SERVICE I hereby certify that, on this 16th day of January, 2008, a true and correct copy of the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY was placed in the U.S. Mail, postage paid, to: Brett Floyd Yeomans Reg. No. 33019-013 Federal Correctional Institution ­ Florence P.O. Box 6000 Florence, CO 81226

s/Dorothy Burwell

Dorothy Burwell United States Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone 303-454-0100 Fax: 303-454-0400 E-mail: [email protected]

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