IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

)

vs. ) CRIMINAL NO. 06-00176-CG

)

JAKARTA ALGERNON BONNER, )

)

Defendant. )

ORDER

Defendant Jakarta Algernon Bonner moved to vacate under 28 U.S.C. § 2255. (Doc.

593). The court has not caused the petition to be served on the United States Attorney because

the files and records of this case show that Bonner is entitled to no relief.

“Unless the motion [under Section 2255 ] and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to

be served upon the United States attorney, grant a prompt hearing thereon, determine the issues

and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255 .

However, an evidentiary hearing is not required in every case. For example, no evidentiary

hearing is required:

• Where the petitioner's claim is “patently frivolous,” Holmes v. United States,

876 F.2d 1545, 1553 (11th Cir.1989);

• Where the claim is “based upon unsupported generalizations,” id.;

• Where the petitioner has not “allege[d] facts that, if true, would entitle him to

relief,” Aron v. United States, 291 F.3d 708, 715 (11th Cir.2002);

• Where the facts alleged are not “reasonably specific [and] nonconclusory,” id. at

714-15;

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 The court notes that to support his claim that jurisdiction is lacking, Bonner appears to

argue that venue was improper. However, “venue and subject-matter jurisdiction are not

concepts of the same order.” Wachovia Bank v. Schmidt, 546 U.S. 303, 305, 126 S.Ct. 941, 944

(U.S. 2006). Venue is “largely a matter of litigational convenience” and generally involves

choosing a convenient forum. Id. “Subject-matter jurisdiction, on the other hand, concerns a

court's competence to adjudicate a particular category of cases; a matter far weightier than

venue.” Id. The court presumes that Bonner intends to assert jurisdictional problems when he

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• “[W]here the petitioner's allegations are affirmatively contradicted by the

record,” id. at 715;

• Where the petitioner's version of the facts has already been accepted as true,

Turner v. Crosby, 339 F.3d 1247, 1274-75 (11th Cir.2003); and

• Where “the district court can determine the merits of the ineffectiveness claim

based on the existing record.” Schultz v. Wainwright, 701 F.2d 900, 901 (11th

Cir.1983).

Bonner moves for relief based on the following grounds (1) denial of the right to have a

jury of peers determine the elements of the offense; (2) lack of subject matter jurisdiction; (3)

double jeopardy; and (4) unconstitutionality of Title 18 and Title 28. The court finds that all of

Bonner’s claims are patently frivolous and therefore, that Bonner’s motion is due to be DENIED

without a response from the United States or a hearing.

1. Right to Jury

Bonner plead guilty to conspiracy to possess with intent to distribute controlled

substances in violation of 21 U.S.C. § 846. (Doc. 317, 457). Bonner expressly waived his right

to have a trial by jury in his plea agreement. (Doc. 317, p. 1). Thus, the court finds Bonner

cannot obtain relief based on the denial of his right to have a jury trial and that this claim is

therefore frivolous. 

2. Subject Matter Jurisdiction

Bonner argues that in order for this court to enjoy venue1

, the place where the offense

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refers to venue.

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was allegedly committed must be proven by the prosecutor to have been within the jurisdiction

of the United States. Bonner states that there are two distinct kinds of jurisdiction, state

jurisdiction and federal jurisdiction and argues that the state has not surrendered jurisdiction and

thus, that “federal jurisdiction extends only over the areas wherein it possesses the power of

exclusive Legislation.” (Doc. 592-2, p. 58). Bonner argues that an indictment must plead

specific language to notify the defendant of the time, date and place the alleged defense

occurred. Accordingly, Bonner contends that the indictment in this case was insufficient to

establish jurisdiction because it only alleged that the offense was committed “on or about” a

particular date and “In the Southern District of Alabama.” (Doc. 592-2, p. 58). However, the use

of “on or about” in the indictment was clearly sufficient notification of the time and date of the

alleged offense. In fact, it is long-settled that if the offense actually occurred on a different date,

reasonably near the date specified, that the indictment’s allegation of “on or about” was

sufficient. See United States v. Reed, 887 F.2d 1398, 1403 (11th Cir.1989) (“When the

government charges that an offense occurred ‘on or about’ a certain date, the defendant is on

notice that the charge is not limited to the specific date or dates set out in the indictment. Proof

of a date reasonably near the specified date is sufficient.” citations omitted). Likewise, the

indictment’s statement that the offense occurred in the Southern District of Alabama also

provides sufficient notice to the defendant of the place the offense occurred. See U.S. v.

Champion, 813 F.2d 1154, 1168 (11th Cir. 1987) (“An indictment that specified the place of the

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offense as the Southern District of Florida would have sufficiently informed [the defendant] of

the place of his alleged offense.” (citing United States v. Harrell, 737 F.2d 971, 975 n. 4 (11th

Cir.1984), cert. denied, 469 U.S. 1164, 105 S.Ct. 923, 83 L.Ed.2d 935 (1985)). Thus, the court

finds that plaintiff’s claim of lack of jurisdiction is patently frivolous. 

3. Double Jeopardy

Bonner bases his double jeopardy claim on the fact that supervised release and

imprisonment are two distinctly different kinds of punishment. Bonner was sentenced to 168

months imprisonment and 5 years of supervised release upon release from imprisonment. He

argues that supervised release “is a second kind of punishment” and therefore being sentenced to

both imprisonment and supervised release results in a double penalty. (Doc. 593 at p. 27). 

However, the imposition of a prison term and supervised released are both part of one sentence

for his offense. Congress specifically authorized the United States District Courts to pronounce

a sentence of imprisonment to be followed by a term of supervised release. Title 18 of the

United States Code, § 3583(a) states that “[T]he court, in imposing a sentence to a term of

imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement

that the defendant be placed on a term of supervised release after imprisonment.” The sentence

does not punish Bonner multiple times, but merely gives him a term of imprisonment to be

followed by a term of supervised release. Therefore, Petitioner's claim that his sentence violated

the double jeopardy clause is wholly without merit.

Additionally, in his plea agreement, Bonner, with limited exceptions not applicable here,

expressly waived his right to challenge any sentence imposed, or the manner in which it was

determined, in any collateral attack, including a motion brought under 28 U.S.C. § 2255. (Doc.

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317, p. 10).

4. Unconstitutionality of Title 18 and Title 21, United States Code

Bonner contends that Titles 18 and 21 of the United States Code are unconstitutional due

to alleged irregularities in their enactment. Title 18 and Title 21 have been held to be

constitutional in the face of similar arguments made by other defendants in the past which have

been rejected as erroneous as a matter of law. This court has jurisdiction over Mr. Bonner and

his co-defendants pursuant to 18 U.S.C. § 3231, which states: “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.” The 1948 amendment to that statute passed both houses of

Congress and was signed into law by President Truman on June 25, 1948, such that the

jurisdictional statutes relied on in this case were properly enacted and are binding. See U.S. v.

Delatorre, 2008 WL 312647, *1 (N.D. Ill. January 30, 2008) (citation omitted). Courts have

repeatedly held that there is no merit to the argument that Title 18 and Title 28 are

unconstitutional because of supposed irregularities in their enactment. See, e.g., United States v.

Collins, Nos. 05-4708, 06-2746, 06-3741, 2007 WL 4355361, at *1 (7th Cir. Dec.14,

2007);McIlrath v. U.S., 2008 WL 357344, *2 (E.D. Wis. February 8, 2008); U.S. v.

Cuevas-Arredondo, 2008 WL 80127, *6 (D. Neb. January 4, 2008); U.S. v. Castaneda, 2007 WL

3094377, *6 (W.D. Ark. October 19, 2007); U.S. v. Chillemi, 2007 WL 2995726, *1 (D. Ariz.

October 12, 2007); U.S. v. Sledge, 2007 WL 2071817, *3 (W.D. La. May 30, 2007). This court

agrees. 

CONCLUSION

For the reasons stated above, the court finds that the files and records of this case

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demonstrate that Bonner’s claims are patently frivolous. Therefore, the motion of defendant

Jakarta Algernon Bonner to vacate under 28 U.S.C. § 2255. (Doc. 593) is DENIED without a

hearing.

DONE and ORDERED this 20th day of March, 2008.

 /s/ Callie V. S. Granade 

CHIEF UNITED STATES DISTRICT JUDGE 

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