Petition for Writ of Certiorari — Brian William Schumaker, Petitioner v. United States

APPENDIX

USCA11 Case: 24-13918

Document: 25

Date Filed: 07/22/2025

Page: 2 of 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 24-13918-C

BRIAN WILLIAM SCHUMAKER,

Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

Respondent - Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

ORDER: Pursuant to the 11th Cir. R. 42-l(b), this appeal is DISMISSED for want of

prosecution because the appellant Brian William Schumaker has failed to pay the filing and

docketing fees to the district court within the time fixed by the rules.

Effective July 22, 2025.

DAVID J. SMITH

Clerk of Court of the United States Court

of Appeals for the Eleventh Circuit

FOR THE COURT - BY DIRECTION

APPENDIX

’A'

United States Court of Appeals for the Eleventh Circuit Decision

USCA11 Case 24-13918

Decided 07/01/2025

2025 U.S.App.LEXIS 16283

USCA11 Case: 24-13918

Document: 24-2

Date Filed: 07/01/2025

Page: 1 of 3

3lit tip?

Mnffeb JBtote fflmrrf itf Apprate

3Fur ftp Wtoenfli (tttrtutf

No. 24-13918

BRIAN WILLIAM SCHUMAKER,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

DC. Docket No. l:24-cv-04076-JPB

ORDER:

USCA11 Case: 24-13918

2

Document: 24-2

Date Filed: 07/01/2025

Order of the Court

Page: 2 of 3

24-13918

Brian Shumaker is a federal prisoner serving a 360-month

sentence for traveling across state lines to engage in a sexual act

with a minor, use of a computer to entice a minor to engage in

sexual activity, and possession of child pornography. Shumaker is

appealing the district court’s dismissal of his pro se 28 US.C. § 2255

motion as successive. Shumaker now moves for a certificate of ap­

pealability ("COA"), as construed from his notice of appeal, in

forma pauperis ("IFP"), and to supplement the record.

Generally, a prisoner seeking to appeal a district court’s de­

nial of habeas relief must obtain a COA. See 28 U.S.C.

§ 2253(c)(1)(B), However, a COA is not required if the district

court s order is not a "final order” under 28 U.S.C. § 2253(c). Hub­

bard V. Campbell 379 E3d 1245,1247 (11th Cir. 2004).

Here, a COA is not required because Shumaker’s § 2255 mo­

tion was denied as successive without discussion of the merits of

that motion. See id. Accordingly, Shumaker’s motion for a COA is

DENIED AS UNECESSARY,

As to his motion for IFP, his appeal is subject to a frivolity

determination. 28 U.S.C. § 1915(e)(2)(B). An action "is frivolous if

it is without arguable merit either in law or fact." Bilal v. Driver, 251

F.3d 1346,1349 (11th Cir. 2001).

Here, there are no non-frivolous issues, as the district court

properly dismissed Shumaker’s § 2255 motion as successive, given

that he previously filed a § 2255 motion, regarding the same con­

victions as here, in 2016, which was denied, and he has not received

USCA11 Case: 24-13918

24-13918

Document: 24-2

Date Filed: 07/01/2025

Order of the Court

Page: 3 of 3

3

authorization from this Court to file a subsequent motion. See 28

U.S.C. § 2255(h).

Further, the court properly concluded that Shumaker’s case

was unlike Stewart, as the newly discovered evidence that Shu­

maker asserts in his § 2255 motion, specifically his argument that

federal officials cannot prosecute federal crimes committed in

Georgia, could have been raised previously. See Stewart v. United

States, 646 F.3d 856,859, 863 (11th Cir. 2011).

Accordingly, Shumaker’s motion for IFP is DENIED as his

motion to supplement the record is DENIED AS MOOT.

/s/ Nancy G. Abudu_______________

UNITED STATES CIRCUIT JUDGE

APPENDIX 'B'

United States District Court, Atlanta Division Decision

USDC Case No. l:O7-cr-OO289-JPB-CMS

Decided 11/06/2024

Case l:07-cr-00289-JPB-CMS Document 402 Filed 11/06/24 Page 1 of 5

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

BRIAN SCHUMAKER,

CRIMINAL ACTION NO.

1:07-CR-00289-JPB-CMS-1

Movant,

v.

UNITED STATES OF AMERICA,

Respondent.

ORDER

This matter is before the Court on the United States Magistrate Judge’s Final

Report and Recommendation (“R&R”) [Doc. 399]. On September 10, 2024,

Movant Brian Schumaker (“Movant”) filed a Motion to Vacate pursuant to 28

U.S.C. § 2255 (“Motion to Vacate”) [Doc. 396]. In the R&R addressing the

Motion to Vacate, the Magistrate Judge recommends that the motion be dismissed

as impermissibly successive. See [Doc. 399, p. 4]. Thereafter, Movant filed his

objections to the R&R. See [Doc. 401]. This Court finds as follows:

I. Background

On April 4,2011, Movant was convicted by a federal jury for traveling

across state lines to engage in a sexual act with a minor, use of a computer to

entice a minor to engage in sexual activity and possession of child pornography.

See [Doc. 279]. The Court sentenced Movant to 360 months of imprisonment

Case l:07-cr-00289-JPB-CMS Document 402 Filed 11/06/24 Page 2 of 5

followed by a term of supervised release. [Doc. 302]. The Eleventh Circuit Court

of Appeals affirmed Movant’s convictions and sentence. [Doc. 336]. Then, on

September 27,2013, Movant filed a § 2255 motion challenging his convictions.

[Doc. 341]. Shortly thereafter, this Court denied Movant’s § 2255 motion on the

merits. [Doc. 367]. The Eleventh Circuit declined to grant Movant a certificate of

appealability as to this Court’s denial of § 2255 relief. [Doc. 383].

In Movant’s pending § 2255 motion, he claims that he has newly discovered

evidence showing that his convictions are infirm for lack ofjurisdiction because

the United States does not have the authority to prosecute crimes committed within

the State of Georgia. [Doc. 396-1, p. 2]. The “new evidence” that Movant points

to is a letter from the office of the Georgia Secretary of State responding to a

freedom of information request submitted by Movant. See idL at 16-19. In the

letter, the Georgia Secretary of State informs Movant that it does not have copies

of any letters in which the federal government provided notice that it intended to

exercise jurisdiction over the enforcement of federal laws or other documents that

indicate that the State of Georgia had ceded legislative jurisdiction to the federal

government. Id. Movant argues that this “newly discovered evidence” shows that

the federal government lacked jurisdiction to bring a case against him in Georgia,

and Movant argues that his trial counsel refused to raise or investigate these

jurisdictional issues. Id. at 4-5, 9.

2

Case l:07-cr-00289-JPB-CMS Document 402 Filed 11/06/24 Page 3 of 5

In evaluating the merits of Movant’s instant § 2255 motion, the Magistrate

Judge determined that this Court lacks jurisdiction over the motion because it is

successive, and Movant has not sought authorization from the Eleventh Circuit to

file a successive motion. [Doc. 399, pp. 2-3]; see 28 U.S.C. § 2244(b). As such,

the Magistrate Judge recommends that the instant Motion to Vacate be dismissed

without prejudice. Id. at 4.

II. Legal Standard

A district judge has broad discretion to accept, reject or modify a magistrate

judge’s proposed findings and recommendations. United States v. Raddatz, 447

U.S. 667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any

portion of the Report and Recommendation that is the subject of a proper objection

de novo and any non-objected-to portion under a “clearly erroneous” standard.

Notably, a party objecting to a recommendation “must specifically identify those

findings objected to. Frivolous, conclusive, or general objections need not be

considered by the district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th

Cir. 1988) (citation omitted). It is reasonable to place this burden on the objecting

party because “[t]his rule facilitates the opportunity for district judges to spend

more time on matters actually contested and produces a result compatible with the

3

Case l:07-cr-00289-JPB-CMS Document 402 Filed 11/06/24 Page 4 of 5

purposes of the Magistrates Act.” United States v. Schultz, 565 F.3d 1353,1361

(11th Cir. 2009).

III. Discussion

Most of Movant’s objections consist of pseudo-legalese statements that are

reminiscent of sovereign citizen arguments, such as his contention that he has no

corporate identity and his invocation of the Uniform Commercial Code and

admiralty law. See generally [Doc. 401, pp. 1—2]. In his sole valid objection,

Movant contends that his pending § 2255 motion should not be considered second

or successive under the Eleventh Circuit’s opinion in Stewart v. United States.

646 F.3d 856 (11th Cir. 2011). In Stewart, the Eleventh Circuit held that, because

the basis for a petitioner’s numerically second § 2255 claim did not exist when he

filed his initial § 2255 motion, the petitioner’s “numerically second motion is not

‘second or successive,’ and § 2255(h)’s gatekeeping provision does not apply.” let

at 865.

However, unlike the petitioner in Stewart, Movant relies upon a claim for

which the basis did exist prior to the filing of his initial § 2255 motion. See id. at

864-65. The “new” evidence that Movant points to—the purported fact that

federal officials cannot prosecute federal crimes committed in the State of

4

Case l:07-cr-00289-JPB-CMS Document 402 Filed 11/06/24 Page 5 of 5

Georgia—could have been discovered prior to his trial.1 Finally, Movant’s claim

that this Court lacked jurisdiction because the federal government cannot prosecute

him for illegal activities committed in Georgia without the State’s permission is

entirely frivolous and devoid of merit.

IV. Conclusion

For the reasons stated, this Court agrees with the Magistrate Judge that

Movant’s Motion to Vacate [Doc. 396] must be dismissed as impermissibly

successive and for this Court’s lack of subject matter jurisdiction. Accordingly,

the R&R [Doc. 399] is ADOPTED as the order of the Court, the pending motion

[Doc. 396] is DISMISSED and a certificate of appealability is DENIED. The

Clerk is DIRECTED to close this case.

SO ORDERED this 6th day of November, 2024.

United States District-Judge

1 The Eleventh Circuit in Stewart also stated that ‘“[c]laims based on a factual predicate

not previously discoverable are successive,’ but ‘[i]f... the purported defect did not

arise, or the claim did not ripen, until after the conclusion of the previous petition, the

later petition based on that defect may be non-successive.’” 646 F.3d at 863 (quoting

Leal Garcia v. Ouarterman, 573 F.3d 214, 221 (5th Cir. 2009)). In addition to being

previously discoverable, the “new” evidence Movant cites in support of his pending §

2255 motion appears factual in nature, thus further foreclosing the possibility that belated

discovery of the evidence renders the instant motion non-successive.

5

Case l:07-cr-00289-JPB-CMS

Document 399

Filed 09/19/24

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

BRIAN SCHUMAKER,

Movant,

MOTION TO VACATE

28 U.S.C. § 2255

CRIMINAL ACTION NO.

1:07-CR-00289-JPB-CMS-l

UNITED STATES OF AMERICA,

Respondent.

CIVIL ACTION NO.

1:24-CV-04076-JPB-CMS

ORDER AND FINAL REPORT AND RECOMMENDATION

Movant Brian Schumaker, confined at Federal Correctional Institution Fort

Dix in Fort Dix, New Jersey, filed a motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2255. (Doc. 396). Katherine Terry’s motion to withdraw

(Doc. 398) is GRANTED.

This matter is before the Court for a preliminary review of the motion

pursuant to Rule 4 of the Rules Governing Section 2255 Cases, which provides that

summary dismissal is proper when the motion and the attached exhibits plainly

reveal that relief is not warranted.

For the reasons stated below, it is RECOMMENDED that this action be

DISMISSED without prejudice.

I.

Discussion

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal

prisoner wishing to file a second or successive § 2255 motion must first move in

Case l:07-cr-00289-JPB-CMS

Document 399

Filed 09/19/24

Page 2 of 4

the appropriate court of appeals for an order authorizing the district court to consider

such a motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). Absent such authorization, a

district court lacks jurisdiction to consider a second or successive § 2255 motion.

Jones v. United States, 82 F.4th 1039, 1047^48 (11th Cir. 2023).

Movant was convicted in 2011 of traveling to engage in a sexual act with a

minor, in violation of 18 U.S.C. § 2241(c); use of a computer to entice a minor to

engage in sexual activity, in violation of 18 U.S.C. § 2422(b); and possession of

child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and he was sentenced

to a total active term of 360 months of imprisonment. (Doc. 302). In 2013,Movant

filed a § 2255 motion challenging these convictions that was denied on the merits.

(Docs. 341,361,367,383). In the instant § 2255 motion, Movant seeks to challenge

these same convictions. {See Doc. 396 at 1). In particular, he claims that he has

newly discovered evidence showing that his convictions are infirm for lack of

jurisdiction because the United States does not have the authority to prosecute

crimes committed within the State of Georgia. {Id. at 4-7).

However, because Movant previously filed a § 2255 motion that was denied,

and because there is no indication that Movant has received prefiling authorization

from the Eleventh Circuit, the instant § 2255 motion is impermissibly second or

successive. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); Jones, 82 F.4th at 1047-48.

Thus, this Court may not consider the motion, and the motion is subject to dismissal

2

Case l:07-cr-00289-JPB-CMS

Document 399

Filed 09/19/24

Page 3 of 4

for lack of jurisdiction.1 Because this case is due to be dismissed for lack of

jurisdiction, Movant’s motion to expand the record (Doc. 397) is DENIED as moot.

II.

Certificate of Appealability

Pursuant to Rule 11 of the Rules Governing Section 2255 Cases, “(t]he

district court must issue or deny a certificate of appealability when it enters a final

order adverse to the applicant. ... If the court issues a certificate, the court must

state the specific issue or issues that satisfy the showing required by 28 U.S.C.

§ 2253(c)(2).” Section 2253(c)(2) states that a certificate of appealability may issue

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” A substantial showing of the denial of a constitutional right

“includes showing that reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473,484 (2000) (internal quotation marks omitted).

When the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional

claim ... a certificate of appealability should issue only when the

prisoner shows both that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional

1 Movant contends that the instant motion is not second or successive, but his

argument is flatly unconvincing, and the cases he cites are inapposite. (See Doc.

396 at 11 (citing Johnson v. United States, 544 U.S. 295 (2005); Rivers v. United

States, 416 F.3d 1319 (11th Cir. 2005))). Movant must present his alleged newly

discovered evidence to the Eleventh Circuit for authorization to proceed.

3

Case l:07-cr-00289-JPB-CMS

Document 399

Filed 09/19/24

Page 4 of 4

right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.

Jimenez v. Quarterman, 555 U.S. 113,118 n.3 (2009) (citing Slack, 529 U.S. at 484)

(internal quotation marks omitted).

It is RECOMMENDED that a certificate of appealability be DENIED

because resolution of the issues presented is not debatable. If the District Judge

adopts this recommendation and denies a certificate of appealability, Movant is

advised that he “may not appeal the denial but may seek a certificate from the court

of appeals under Federal Rule of Appellate Procedure 22.” 28 U.S.C. foil. § 2255,

Rule 11(a).

III.

Conclusion

For the reasons stated above, it is ORDERED that Katherine Terry’s motion

to withdraw (Doc. 398) be GRANTED and Movant’s motion to expand the record

(Doc. 397) be DENIED as moot, and it is RECOMMENDED that this action be

DISMISSED without prejudice and a certificate of appealability be DENIED.

The Clerk is DIRECTED to terminate the referral to the undersigned.

SO RECOMMENDED, this 19th day of September, 2024.

CATHERINE M. SAETNAS

UNITED STATES MAGISTRATE JUDGE

)

APPENDIX

’C’

August 15, 2024 Letter from GEORGIA Sec.-of-State Office

cited at Page 10

with Petitioner’s FOIA/Open Records Act Request

The Office of Secretary of State

August 15,2024

VIA U.S. MAIL

Brian-William Schumaker [Reg. #59309-019]

FCIFortDix

Federal Correctional Institution

P.O. Box2000

Joint Base MDL, NJ 08640

RE: OPEN RECORDS REQUEST

Dear Mr. Schumaker:

The Secretary of State’s Office does not retain records responsive to your request. These records

may be held with another agency or entity.

Sincerely,

Open Records Staff

Georgia Secretary of State Brad Raffensperger

2 MLK Jr. Dr. SE | West Tower | Suite 802 | Atlanta | Georgia |30334

fl> <u M

55 g

3fe

iMu. CO

° O2

sslssei

i-Sg«fiC8

■55„5Sf!s

a sdkuiS

*Q

•A<«?

c fl) M

01 ii'

off jsj ?fi

I Mil I1

;M*1 « °

a »J«

0)

CO

s ss;-m

Ig

jo

hi

„„o

OH «

IM

?5< £.o

■s 8 £

■5

x’SS 3

S 58852

JM X w

f fr-J; 8 Ie2 «Jjf

*55"

v8

■

‘

° "’Iji

Ij

fe S 88 E S'Sg "335" 8, 3

8

3«°g

« Ea?-,e w

11

H’s

* tJ ■ I

cu

o

oi eg

q5

’-S"®

s.

feS A OH

5 O.? w

a

U<«

g-S^lk® §”u..§SfiS^

WJ Iliff

*: 30m

IS

§

g £«=UB" H.

s?;»I

ih

i 'i'®

S^^s®

d

O

3

O u

@ I-

S’

A<

CO

ul

U

■3.

2

■5

S3 35

J5-

i?sll5 fiss

HUB Hi

3

B oI'

tt •

a

Ok tt M

? J ?■< hs?

tsi.

S ■ tf 0

">

3

' CW W

UN

fg 33

= E>

H»iri

>1

I® n M

tfl JO*

—

I —*

>m

ire ©

mx M

H O* St ^0

n 3 v

h

i H&f

«

jc

£

i*

o. © ®

H > 0

<0 U W

n *

’-gH.'3 .'i

©

m « 5 •h." w S

o & • > o. c <

• 2 o -h *< * >■

t> n ‘5.O-- rt.

8

S'

«*

S 3. & S.

A U:S 8

« e ©

*.e.■&!<©

xx

m

*

«

41 it «M

0 5 w .*

3 ja 3 *» as

£

I

L-

■ t> Hl *

*• U

<5 u|<uf ® to v

m m|| oljE

■

-i2

II

• X

' jH

Al X

G

0

a

.83

M S~

SriH

0

a

k G Al

k k G

30 £

8'fi " •

o a» u«r

3

Is

p ®»

u

-JS3

^8i

.0

c

s

k

S

C

0

•u

c

a

*4

0

s

a c

a •H

o

0

J

s£

0

a

t

5

ja a xi .a

w m *i H

k G2

0 6 0 ai

x -nW

0 M8

-J

*U G

0 Al

k G

Di Al

5u

* a

S«

o

c

W G

>4

O’ r>

S V

■g

0 .01

0 >1

r4 *0 Al

a

•rt

■0

*0

0

fit H U fl

'V

X

lS’l

Al

0

88

Al U

J

a

o

5

a

«H

s

0 Al

5^3.

k «M X fl

•gg-5 * g

$5 * S

G

G

k

X .

AH k »

a 0 o

0 H Al C

f5

04

•0

C

fl

m

..

C •O

0

»

U " ** S

m v

»

0 0 Sa

XI > U M §G *4

X M ■h ■M--C

.

?

5-8 M 8

0 0

0 o e 9, x>

xi 0 x jxt? 5 v

“ H .§ S“* © S - *•

a o’*i & 9'

h e a £ f -g

rl 0 0 xl

a o «J

fi-oSgS;

mu

_,_ z- S• u•■ *J 8.5 0 o n. o 9 a

X 0 .> fl «r.-........xl 4

•’VS ,S_ „31u0.M•» *4o rf■ g9 xi0 ■•o

F« > • - it ■

- M

■' 01S «

k*

0

k

0

rC

0

0)

0

u’

M X 0

0>

G V

•Ml C

k

0

•11 i

!

M c

. H

s.

IM

53 8#

■i

o xi

A *<

*5 -s %

0 a

OS">H fl J

2"’3«

Al

glA. Al

W

58*48g3.

858^8435

n u. w a *><»■

-H5 o

,5 S -AJaoaMA/ck^D*"*/

*LJ

.5.^1

a v <rt

fl

X

*♦ H O' 0 *0

w 5 L. •>

»» R« tn M tt £* A .u a *0 0.6 & ft a S.

U

0

?

8H

'0

04

■0

0

C

0

3

fr

o

w

X

«k .

0

c

0 r*

X

0

0 01

x n

H A.

*■*5^8

h ’5 tip

W u ! H'S <■

0 a

0 c

0 0

U *0.

• fl 0

k M

A O

h

*u u

.

0 C

Q 0

w 8 •■•8lg

sf 8'8-8&S "J

fit s

.5

‘0

0

il!

H

^2

•fi•r. • ■ ©

3fr°

•5 3

*5 8

©13 *3

5 jj JM

rt 0 P»

h;

£7*8

H

SS

y <n a>

0

J

5 K’g

3 « «[

^*"g.

?g

fc

S "