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Shaffer v. United States

United States District Court, S.D. Ohio, Eastern Division

May 17, 2017

THOMAS E. SHAFFER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. 2:17-cv-0423

          JUDGE, MICHAEL H. WATSON

          Magistrate Judge, Deavers

          ORDER AND REPORT AND RECOMMENDATION

          NORAH McCANN KING, UNITED STATES MAGISTRATE JUDGE

         Petitioner has filed a motion to vacate under 28 U.S.C. § 2255. Motion to Vacate, ECF 73. This matter is before the Court for the preliminary review required by Rule 4 of the Rules Governing Section 2255 Proceedings in the United States District Courts. For the reasons that follow, it is recommended that all claims except the claim of ineffective assistance of counsel be dismissed as having been waived.

         Petitioner Thomas E. Shaffer was convicted on his plea of guilty to six (6) counts of interference with commerce by threats or violence in violation of 18 U.S.C. § 1951(a), and to one (1) count of brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). In the Amended Plea Agreement, ECF 45, which was executed pursuant to the provisions of Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, Petitioner agreed to a sentence of imprisonment ranging from 180 to 240 months. Id., at ¶ 9(b). Petitioner was sentenced to an aggregate term of 200 months' imprisonment. Judgment, ECF 66. In the Amended Plea Agreement, Petitioner also agreed to waive most of his appellate rights:

Defendant THOMAS E. SHAFFER waives any motions described in Fed. R. Crim. P. 12(b)(3), any and all motions, defenses, probable cause determinations, and objections which the defendant could assert to the Indictment or the Court's entry of judgment against the defendant and imposition of sentence upon the defendant, providing the sentence is consistent with this Agreement. The defendant Further waives: (a) any right to appeal the Court's entry of judgment against defendant; (b) any right to appeal the imposition of sentence upon defendant under 18 U.S.C. § 3742; (c) any right to collaterally attack the conviction and sentence under 28 U.S.C. § 2255, or any other collateral attack; and (d) any right to file a motion for modification of sentence, including under 18 U.S.C. § 3582(c). The defendant acknowledges that this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his conviction or sentence in this case. If the defendant files a notice of appeal or a habeas petition, notwithstanding this agreement, defendant agrees that this case shall, upon motion of the United States, be remanded to the District Court to determine whether the defendant is in breach of this agreement, and, if so, to permit the United States to withdraw from the Plea Agreement. This waiver shall not be construed to bar a claim by the defendant for ineffective assistance of counsel or prosecutorial misconduct, or modification of sentence pursuant to a substantive change in the law or pursuant to 18 U.S.C. § 3582(c)(2).

Amended Plea Agreement, ¶ 12.

         The Motion to Vacate asserts the following claims, repeated here verbatim:

GROUND ONE: Government's nondisclosure of defendant's mental health capacity: In that; Expert Mental Confession.
It is a requirement that cannot be deem to be satisfied by mere notice and hearing if the government has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by the United States Government to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.
***
GROUND TWO: Trial court's dismissal of defendant's “petition/appeal” for post-conviction relief: In that; The suppression of the evidence to wit; mental health expert testimony, contributing factors that lead to defendant's confession prior to and after proceeding to trial and sentencing phase denied defendant of due process of law and illegal conviction.
***
GROUND THREE: a). Suppression of evidence by prosecution in a criminal case as vitiating conviction. (b) Conviction on testimony to be perjured as a denial of due process. (c) ...

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