221 F.3d 941 (7th Cir. 2000)
ROBERT M. LEVINE, Petitioner-Appellant,v.UNITED STATES OF AMERICA, Respondent-Appellee.
Nos. 99-1153 & 99-1236
In the  United States Court of Appeals  For the Seventh Circuit
Argued May 11, 2000Decided July 19, 2000

Before COFFEY, EVANS and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge.


1
On January 11, 1991, a  grand jury returned a five count indictment  against the petitioner-appellant Richard M.  Levine ("Levine"), charging him in Count one with  conspiring to use interstate commerce to effect  murder for hire and in Counts two through five  with using interstate commerce to effect murder  for hire, see 18 U.S.C. sec.sec. 371, 1958. At  the conclusion of a jury trial, Levine was found  guilty on all five counts and the court sentenced  him to life imprisonment on Counts two through  five and 60 months' imprisonment on Count one,  ordering the sentences to run concurrently and  concurrent with each other. After this court  affirmed his conviction and sentence on direct  appeal, see United States v. Levine, 5 F.3d 1100  (7th Cir. 1993), Levine filed a motion under 28  U.S.C. sec. 2255, seeking to "vacate, set aside  or correct [his] sentence," which was denied by  the district court on October 22, 1998.  Thereafter, Levine appealed and a requested  certificate of appealability was granted by the  district judge on the sole issue of whether the  court that tried Levine's case lacked  jurisdiction due to the fact that the prosecuting  Assistant U.S. Attorney ("AUSA") resided outside  the judicial district (Northern District of  Indiana). We AFFIRM the district court's decision.

I.  BACKGROUND

2
For purposes of this appeal, only a cursory  description of the facts is required.1 Levine  and his brother Donald Levine were business  partners. But after his brother and sister-in-law  Marsha Levine accused him of embezzling and  misappropriating funds, Levine hired an assassin  to murder his brother, sister-in-law and nephew  Mark Levine, in order that he might gain control  of their joint business partnerships. After  months of planning and preparation, on November  9, 1989, the assassin went to Donald's home in  Munster, Illinois. While posing as a deliveryman,  the murderer entered the house and shot and  killed Donald and Marsha with a .357 Ruger  handgun, while Mark was able to escape.


3
With Mark's help, law enforcement authorities  were able to identify and arrest the killer, who  eventually agreed to cooperate in the  investigation and testify against Levine. After  evading the authorities for nearly three months  as a fugitive from justice, Levine decided to  surrender on March 4, 1991.


4
Following his conviction and sentencing, this  court affirmed Levine's direct appeal. Levine  thereafter filed a motion under 28 U.S.C. sec.  2255, which the district court denied. Levine  appealed and the district court granted a  certificate of appealability on the sole issue of  whether the court that tried Levine's case lacked  jurisdiction due to the fact that the prosecuting  AUSA resided outside the judicial district.

II.  ISSUES

5
As identified in the certificate of  appealability, Levine argues on appeal that he  "is entitled to relief under 28 U.S.C. section  2255 because the Assistant United States Attorney  [(AUSA)] who handled his case at the trial level  did not live in the Northern District of  Indiana."

III.  DISCUSSION

6
Levine argues that he is entitled to relief  from his conviction because the prosecuting AUSA  resided outside of the Northern District of  Indiana at the time of his trial in violation of  28 U.S.C. sec. 545(a) (1991), thus depriving the  trial court of jurisdiction over his trial and  sentencing.2 We review a district court's  denial of a sec. 2255 petition on factual matters  for clear error, and on questions of law de novo.  See Arango-Alvarez v. United States, 134 F.3d  888, 890 (7th Cir. 1998). A section 2255 motion  must be granted if "the court was without  jurisdiction to impose such sentence." 28 U.S.C.  sec. 2255. "If the court finds that the judgment  was rendered without jurisdiction, . . . the  court shall vacate and set the judgment aside and  shall discharge the prisoner . . . ." Id.


7
As provided by 28 U.S.C. sec. 545(a) (1991),  "[e]ach United States attorney and assistant  United States attorney shall reside in the  district for which he is appointed."3 The issue  before us is one of first impression within this  circuit.4 There is but one reported case that  specifically addresses the effect of a violation  of 28 U.S.C. sec. 545(a) upon a trial court's  jurisdiction: United States v. London, 424 F.  Supp. 556 (D. Md. 1976), affirmed sub nom.,  United States v. Clerkley, 556 F.2d 709 (4th Cir.  1977). In London, the AUSA prosecuting a case  resided outside the judicial district for which  he was appointed, but the court held that a  violation of the residency statute "does not  affect the court's jurisdiction." Id. at 566-67.  The court explained that


8
[i]n United States v. Mitchell, 136 F. 896 (Cr.  Ct. Or. 1905), the court under a predecessor  statute considered the claim that the United  States district attorney lived outside of the  state. In rejecting any jurisdictional claim, the court stated:


9
His right to the office cannot be attacked  collaterally. Whether he is in fact ineligible to  hold the office is not material to the purposes  of this inquiry. He is a de facto officer, and is  entitled to continue in the office until it is  judicially declared by a competent tribunal, in  a proceeding for that purpose, that he has no  right to it.


10
136 F. at 906. See also United States v. Denton,  307 F.2d 336, 338-39 (6th Cir.), cert. denied,  371 U.S. 923, 83 S.Ct. 292, 9 L. Ed. 2d 232  (1962) (unauthorized assistance from IRS lawyers  does not deprive court of jurisdiction). The  court construes the statutory proviso relied upon  by the defendants as relating only to  governmental administration and not to  jurisdiction.


11
Id. at 567 (emphasis added). Likewise, in United  States v. Mitchell, the court interpreted the  predecessor statute of section 545(a) and similarly ruled that


12
[t]he principle is settled that there is a presumption from the undisturbed exercise of a  public office that the appointment to it is  valid. In the present case it is not questioned  that the court had authority to make a valid  appointment to this office, and that it did  appoint Mr. Heney, and that during the  performance by him, as district attorney, of all  the acts and things complained of, he was in the  undisturbed and unquestioned exercise of that  office. . . . [T]he rule is recognized in a long  series of decisions that 'if the office has been  lawfully established and a person exercises the  functions thereof by color of right, but whose  election or appointment thereto is illegal, his  official acts therein cannot be successfully  attacked in collateral proceedings, but in all  such proceedings will be valid and binding until  the officer is ousted by the judgment of a court  in a direct proceeding to try his title to the office.'


13
136 F. 896, 906 (Cr. Ct. Or. 1905).


14
Here, the district judge concluded, and we  agree, that any violation of the residency  requirement "cannot be endorsed," but it does not  "amount to the type of defect [(lack of  jurisdiction)] that warrants upsetting Levine's  conviction now under section 2255." It seems  apparent that in enacting section 545(a),  Congress was addressing an issue of government  administration rather than federal court  jurisdiction. In a 1979 memorandum opinion from  the Office of Legal Counsel for the Department of  Justice, the Executive Office for U.S. Attorneys  ruled that "[i]t appears from the legislative  history that the purpose of the residency  requirement was to ensure the availability of the  attorneys," and does not mention jurisdiction. 3  Op. Off. Legal Counsel 360, 361 (1979). The  Executive Office for U.S. Attorneys also ruled  that for purposes of the residency statute, the  term "residence" refers to "physical presence,  not to legal domicile or voting residence," and  as such, the residency requirement of section  545(a) would be satisfied if the AUSA merely  "rents an apartment in the [district] and lives  there during the workweek. It is not legally  necessary that he change his voting  registration." Id.


15
More importantly, the petitioner does not  dispute the fact that the prosecuting AUSA was  duly appointed by the Attorney General of the  United States and had functioned in that capacity  for a number of years.5 Levine also fails to  direct this court's attention to, nor have we  been able to discover, any caselaw holding that  a violation of the residency statute deprives a  district court of jurisdiction. Accordingly, we  hold that 28 U.S.C. sec. 545(a) concerns a matter  of governmental administration and, while we do  not condone such practices, a violation of the  residency requirement does not deprive the  district court of jurisdiction over Levine's  trial and sentencing. Cf. Home News Publishing  Co. v. United States, 329 F.2d 191, 193 (5th Cir.  1964) ("[T]hese provisions of the statutes are  for the benefit of the Government. . . . We  conclude, therefore, that the trial court had  jurisdiction to proceed to judgment as it  did.").6 We also conclude that overwhelming  evidence of the petitioner's guilt was presented  at trial by the government and the alleged  violation of section 545(a) by the prosecuting  AUSA had no impact whatsoever upon the  petitioner's conviction and sentence. The  district judge properly rejected the petitioner's  jurisdiction argument.7


16
We AFFIRM the district judge's denial of the  petitioner's section 2255 motion.8



Notes:


1
 For further details of Levine's crime and direct  appeal, see Levine, 5 F.3d at 1102-07.


2
 At oral argument, the government stated that the  prosecuting AUSA maintained a North Hammond  mailing address, which is within the Northern  District of Indiana. Nonetheless, for reasons  unexplained, the government does not dispute  Levine's contention that the prosecuting AUSA  resided outside of district, but instead argues  that "even if [the AUSA] did not reside in the  Northern District of Indiana, it would not  invalidate Levine's indictment or prosecution."  Because the government does not dispute the  AUSA's failure to comply with the statute and the  district judge assumed the same, for purposes of  our review, we will assume that the prosecuting  AUSA did not reside within the Northern District  of Indiana.


3
 In 1994, the statute was amended to provide
"Each assistant United States attorney shall  reside in the district for which he was appointed  or within 25 miles thereof." 28 U.S.C. sec.  545(a) (1994) (emphasis added).


4
 Levine also asserts that "this case is different  from every other case cited since in this case  the AUSA, . . . the United States Attorney's  Office and the presiding judge were aware of his  violation, and were aware that he was acting  fraudulently." Levine, however, has presented no  evidence whatsoever in support of this bald  assertion.


5
 The record does not indicate in what year the  prosecuting AUSA in question was appointed by the  Attorney General of the United States.


6
 Further, Levine cites to cases that relate to an  alleged failure to properly appoint an assistant  U.S. attorney or alleged acts that exceed their  authority, and thus, have no applicability here.  See, e.g., United States v. Providence Journal  Co., 485 U.S. 693 (1988); United States v.  Plesinski, 912 F.2d 1033 (9th Cir. 1990); United  States v. Navarro, 959 F. Supp. 1273 (E.D. Cal.  1997).


7
 We are also of the opinion that because section  545(a) concerns a matter of government  administration, the non-resident AUSA was a "de  facto officer, and [was] entitled to continue in  the office until it is judicially declared by a  competent tribunal, in a proceeding for that  purpose, that he had no right to it." Mitchell,  136 F. at 906; see E.E.O.C. v. Sears, Roebuck and  Co., 650 F.2d 14, 17-18 (2d Cir. 1981) ("The de  facto officer doctrine was developed to protect  the public from the chaos and uncertainty that  would ensue if actions taken by individuals  apparently occupying government offices could  later be invalidated by exposing defects in the  officials' titles. . . . The doctrine has  generally been applied to individuals who are in  possession of an office, are performing the  duties of the office, and who maintain an  appearance of right to the office.").


8
 Because Levine has failed to make "a substantial  showing of the denial of a constitutional right,"  we decline his motion to expand the certificate  of appealability to include the additional issues  raised in his briefs. See 28 U.S.C. sec.  2253(c)(2).


