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United States v. Shearod

United States District Court, E.D. Louisiana

November 8, 2018

UNITED STATES OF AMERICA
v.
DAVID SHEAROD

         SECTION A(4)

          ORDER AND REASONS

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE

         Before 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 forth below.

         I. Background

         On 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)

         II. Legal Standard

         Section 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 Cir. 1992)).

         A 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. 1978)).

         III. Discussion

         A. The Federal Bank Robbery Act

         Shearod 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.).

         18 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)).

         Here, 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.

         B. ...


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