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United States of America v. John Floyd Carey

March 19, 2012

UNITED STATES OF AMERICA
v.
JOHN FLOYD CAREY



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

Presently before the court is defendant's pro se motion (Doc. 292) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Defendant John Floyd Carey ("Carey") asserts three grounds for relief, contending that: (1) the district court lacked proper subject matter jurisdiction, (2) his case was not heard by an Article III judge or by an impartial court, and (3) his attorney provided ineffective assistance of counsel.*fn2 For the reasons that follow, Carey's motion (Doc. 292) will be denied.

I. Statement of Facts & Procedural History

On June 9, 2005, a federal grand jury returned a six-count indictment charging Carey with mail fraud in violation of 18 U.S.C. § 1341 (four counts), arson of a building used in interstate commerce in violation of 18 U.S.C. § 844(I), and use of fire to commit a felony in violation of 18 U.S.C. § 844(h). (Doc. 1). On March 5, 2007, a jury found Carey guilty on all counts. (Doc. 190). The trial court sentenced Carey to 183 months of imprisonment, a supervised release term of three years, and ordered restitution in the amount of $500. (Doc. 256).

Carey appealed his sentence to the Third Circuit on March 21, 2008. (Doc. 258). On July 20, 2009, the Third Circuit affirmed both the conviction and sentence. United States v. Carey, 337 Fed. App'x 256 (3d Cir. 2009). Thereafter, Carey filed a writ of certiorari to the United States Supreme Court, which was denied on November 16, 2009. (Doc. 300, at 3). On October 12, 2010, Carey timely filed this motion (Doc. 292) to vacate, set aside, or correct his sentence pursuant to28 U.S.C. § 2255. The motion has been fully briefed and is ripe for disposition.

II. Discussion

Carey asserts three main grounds on which he believes the court should vacate his sentence. These claims relate to (1) subject matter jurisdiction, (2) the impartiality of the trial court, and (3) the effectiveness of counsel. The court will address these arguments in seriatim.*fn3

A. Jurisdictional Authority Under 18 U.S.C. § 3231

In his petition, Carey challengesthe district court's authority to convict and sentence him pursuant to 18 U.S.C. § 3231.*fn4 (Doc. 292, at 2).He contends that Public Law 80-772, codified at 18 U.S.C. § 3231, was never passed or signed in the presence of a quorum or majority of both Houses of Congress as required by the United States Constitution. (See id.); U.S. CONST. art. I, § 5, cl. 1.

Carey's argument is neither new nor novel. See Decarlo v. Hollingsworth, No. 10-481-GPM, 2010 WL 5135883, at *2 (S.D. Ill. Dec. 10, 2010) ("[T]he argument that Title 18 of the United States Code was never constitutionally enacted . . . [is among the] perennial favorites of jailhouse lawyers."); Sainsbury v. Levi, No. 07-cv-4545, WL 4104097, at *3 (E.D. Pa. Nov. 16, 2007) (observing the "rumor" that Congress never validly enacted Public Law No. 80-772 has "spread like wildfire to prisoners throughout the entire country"). Even a cursory review of relevant cases makes it abundantly clear that Carey's claim lacks merit. See, e.g., United States v. Risquet, 426 F. Supp. 2d 310, 311-12 (E.D. Pa. 2006); Saleem v. United States, No. 5:11-cv-61-DCB-RHW, 2011 WL 2118610 (S.D. Miss. May 26, 2011); United States v. Siegleman, No. 2:05-cr-119-MEF-CSC, 2007 WL 1284276 (M.D. Ala. Apr. 30, 2007). Chao v. USA Mining, Inc., Nos. 1:04-CV-1, 1:04-CV-138, 2007 WL 208530, at *16 (E.D. Tenn. Jan. 24, 2007) ("Every court that has considered this argument has ruled against the defendant.").

The Third Circuit Court of Appeals addressed this issue in Wolford v. United States, 362 Fed. App'x 231 (3d Cir. 2010). Like Carey, Wolford claimed that Congress failed to constitutionally enact Public Law 80-772. The court summarily held that Public Law 80-772 passed both houses of Congress and that "Section 3231 was properly enacted and is binding." Id. at 256 (citing Risquet, 426 F. Supp. 2d at 311). Accord Cavender v. Doe, No. 5:11--cv--73--DCB--RHW, 2011 WL 3625362, at *3 (S.D. Miss. Aug. 17, 2011) (describing petitioner's claim that Public Law 80-772 was not properly enacted as "simply frivolous").

Although concurring with the reasoning of the numerous court opinions addressing this issue, including the Third Circuit, the court finds Carey's argument without merit on an additional ground. An enrolled bill, attested by the leaders of both the House and Senate, is conclusive evidence that it properly passed Congress. Field v. Clark, 143 U. S. 649, 672 (1894). In Field v. Clark, the United States Supreme Court held:

The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government . . . . [I]ts authentication as a bill that has passed congress should be deemed complete and unimpeachable.

Id. A certified copy of H.R. 3190, as signed into Public Law 80-772, contains the signatures of both the Speaker of the House and the President pro tempore of the Senate. (Doc. 292-2, at 49). This bill was signed by President Harry Truman on June 25, 1948. (Id.). Accordingly, the congressional record provides conclusive evidence that Congress properly enacted Public Law 80-772, and the district court appropriately exercised jurisdiction over Carey pursuant to 18 U.S.C. ยง 3231. See United ...


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