United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
the Court is a Motion to Vacate Pursuant to 28 U.S.C.
§ 2255 (Rec. Doc. 55) filed by
Defendant David Shearod. The United States of America
(“the Government”) opposes the motion
(Rec. Doc. 59). Having considered the pro se
motion, the opposition, the record, and the applicable law,
the Court finds that Defendant's Motion to Vacate
Pursuant to 28 U.S.C. § 2255 (Rec. Doc.
187) is DENIED for the reasons set
April 3, 2017, David Shearod pleaded guilty to a seven-count
Bill of Information. As admitted to by Shearod in the Factual
Basis, he committed a robbery of two banks by use of fear and
intimidation; a robbery of a Winn Dixie by use of threatened
force; an attempted robbery of and a robbery of a Walgreens
by means of threatened force; an attempted robbery of a
United States Post Office; and with interference of commerce
by threats or violence. (Rec. Doc. 45). Pursuant to a plea
agreement, Shearod entered a Rule 11(c)(1)(C) stipulated
sentence of 120 months. On July 12, 2017, the Court sentenced
Shearod to 120 months. (Rec. Doc. 54). Shearod brings the
instant pro se motion to vacate the sentence under various
claims including: (1) the Government's improper
prosecution under the Federal Bank Robbery Act; (2) the
Government's improper prosecution under the Hobbs Act;
(3) lack of jurisdiction; and (4) ineffective assistance of
counsel. (Rec. Doc. 55)
2255 “provides the federal prisoner with a
post-conviction remedy to test the legality of his detention
by filing a motion to vacate judgment and sentence in his
trial court.” U.S. v. Grammas, 376 F.3d 433,
436 (5th Cir. 2004) (quoting Kuhn v. U.S., 432 F.2d
82, 83 (5th Cir. 1970)). The statute establishes that a
prisoner in custody under a sentence of a federal court
“may move the court which imposed the sentence to
vacate, set aside or correct the sentence.”
Id. (quoting 28 U.S.C. § 2255). Where there has
been a “denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable
to collateral attack, the court shall vacate and set the
judgment aside and shall discharge the prisoner or resentence
him or grant a new trial or correct the sentence as may
appear appropriate.” Id. Relief under 28
U.S.C. § 2255 is reserved for violations of
constitutional rights and for a narrow range of injuries in
federal criminal cases that could not have been raised on
direct appeal and would result in a fundamental miscarriage
of justice. U.S. v. Petrus, 44 F.3d 1004 (5th Cir.
1994) (citing U.S. v. Vaughn, 955 F.2d 367, 368 (5th
district court may deny a Section 2255 motion without
conducting any type of evidentiary hearing if “the
motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.”
U.S. v. Arguellas, 78 Fed.Appx. 984, 986 (5th Cir.
2003) (quoting 28 U.S.C. § 2255; U.S. v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)). In those
cases, however, where the record does not conclusively negate
a prisoner's entitlement to relief, contested fact issues
may not be decided on affidavits alone. Id. (citing
Owens v. U.S., 551 F.2d 1053, 1054 (5th Cir. 1977)).
No. hearing is necessary if the issues raised have been
previously decided on direct appeal, contain no
constitutional violation, or lack support in the record.
U.S. v. McCollom, 664 F.2d 56, 59 (5th Cir. 1981)
(citing Buckelew v. U.S., 575 F.2d 515 (5th Cir.
The Federal Bank Robbery Act
argues that Congressional intent only extends the Federal
Bank Robbery Act to individuals who flee to adjacent states
to evade bank robbery convictions. (Rec. Doc. 55, p. 4). The
Government agrees that the initial intent behind the Federal
Bank Robbery Act was to curb the problem of individuals
robbing banks from state to state. (Rec. Doc. 59, p. 4).
However, this initial intent does not preclude the Government
from prosecuting individuals who rob federally insured banks
and stay in the confines of that state. (Id.).
U.S.C. § 2113, Section (a) provides that “whoever,
by force and violence, or by intimidation, takes, or attempts
to take…any property or money or any other thing of
value belonging to, or in the care, custody, control,
management, or possession of, any bank” shall be fined,
imprisoned, or both. The term “bank” is defined
in Section (f) as any member bank of the Federal Reserve
System and any other banking institution organized or
operating under the laws of the United States. “Proof
that the institution meets [the] definition of
‘bank' at the time of the robbery is an essential
element of the offense that must be proven beyond a
reasonable doubt to establish federal jurisdiction.”
United States v. Guerrero, 169 F.3d 933, 944 (5th
Cir. 1999) (quoting United States v. Slovacek, 867
F.2d 842, 845 (5th Cir. 1989)). Once a bank chooses to come
into the system created by the United States, the United
States may step in and punish acts injurious to the system.
Toles v. United States, 308 F.2d 590, 594 (9th Cir.
1962) (citing Westfall v. United States, 274 U.S.
256, 47 S.Ct. 629, 71 L.Ed. 1036 (1927)).
the Government alleged in the Bill of Information that
Liberty Bank, Regions Bank, and the First Bank and Trust were
insured by the Federal Deposit of Insurance Company at the
time of Shearod's robberies. (Rec. Doc. 41). As consented
to by Shearod, the Factual Basis contains a summary of the
evidence including that all three banks were insured by the
Federal Deposit of Insurance Company. (Rec. Doc. 45).
Pursuant to 18 U.S.C. § 2113, the Court finds that
Shearod was properly prosecuted because the banks were
insured by the Federal Deposit of Insurance Company.