Richard S. Gallaher v. United States , 271 F. App'x 946 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
March 31, 2008
No. 06-13370 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 05-60130-CV-WJZ
01-06166-CR-WJZ
RICHARD S. GALLAHER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 31, 2008)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Richard Gallaher was convicted in the district court of failing to pay a child
support obligation in violation of 18 U.S.C. §§ 228(a)(1) and (a)(3). After his
conviction became final, he moved the district court to vacate his sentence
pursuant to 28 U.S.C. § 2255. The court denied the motion, and he now appeals.
We issued a certificate of appealability (“COA”) certifying one issue for appellate
review:
Whether the district court erred in denying [Gallaher’s] claim
that the district court lacked subject matter jurisdiction to convict him under
18 U.S.C. § 228(a) because [Gallaher] and his children resided in the same
state.
In an appeal from an unsuccessful motion to vacate, our review is limited to
the issues specified in the COA. Murray v. United States, 145 F.3d 1249, 1250-51
(11th Cir. 1998); 28 U.S.C. § 2253(c)(3). “When reviewing the district court’s
denial of a habeas petition, we review questions of law and mixed questions of law
and fact de novo, and findings of fact for clear error.” Nyland v. Moore, 216 F.3d
1264, 1266 (11th Cir. 2000) (addressing a federal habeas petition filed pursuant to
28 U.S.C. § 2254).
Gallaher urges us to resolve this issue in his favor by agreeing with him that
both he and his children lived in Georgia. The Government concedes that if
Gallaher established that he and his children resided in the same state during the
time period described in the indictment, the district court would have been required
to vacate his conviction.
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“Subject-matter jurisdiction defines the court’s authority to hear a given type
of case . . . .” United States v. Morton, 467 U.S. 822, 828, 104 S. Ct. 2769, 2773,
81 L. Ed. 2d 680 (1984).
[S]ubject matter jurisdiction in every federal criminal prosecution
comes from 18 U.S.C. § 3231, and, in almost all criminal cases, that’s
the beginning and the end of the jurisdictional inquiry. Congress,
however, can create additional statutory hurdles to a court’s subject
matter jurisdiction through separate jurisdictional provisions found in
the substantive criminal statute itself under which a case is being
prosecuted.
United States v. Tinoco, 304 F.3d 1088, 1105 n.18 (11th Cir. 2002) (citation,
quotation, and alterations omitted). “[S]ubject matter jurisdiction cannot be
waived or conferred on a court by consent of the parties.” Eagerton v. Valuations,
Inc., 698 F.2d 1115, 1118 (11th Cir. 1983). However, parties “may stipulate to
facts that bear on [the] jurisdictional inquiry.” Engineering Contractors Ass’n v.
Metropolitan Dade County., 122 F.3d 895, 905 (11th Cir. 1997); see West
Peninsular Title Co. v. Palm Beach County., 41 F.3d 1490, 1492 n.4 (11th Cir.
1995) (“Parties may not stipulate jurisdiction. And we do not say that jurisdiction
was proper because jurisdiction was stipulated. Instead, we look to the record; we
affirm the district court’s conclusion that the stipulated facts give rise to
jurisdiction.” (citation omitted)).
Under 18 U.S.C. § 228, anyone who “willfully fails to pay a support
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obligation with respect to a child who resides in another State,” is subject to
punishment if the obligation is of a specified amount and remains unpaid for a
specified period of time. 18 U.S.C. § 228(a) and (c).
We perceive no clear error in the district court’s determination that Gallaher
failed to establish that his children resided in the same state as he during the
relevant time period. The evidence Gallaher presented did not overcome his
stipulation at trial that his children resided in a different state at such time.
The judgment of the district court is, accordingly,
AFFIRMED.
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