Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shaffer v. United States

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

July 30, 2018

THOMAS E. SHAFFER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          Michael H. Watson Judge

          ORDER AND REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE

         Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 73.) This matter is before the Court on that motion, as amended, Respondent's Response in Opposition (ECF No. 88), Petitioner's Reply (ECF No. 89), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMEND that this action be DISMISSED.

         Petitioner's Motion for Leave to Amend and Supplement (ECF No. 87) is GRANTED.

         I. Facts and Procedural History

         On November 9, 2015, Petitioner pleaded guilty pursuant to the terms of his Amended Plea Agreement to Counts 1, 3, 5, 7, 9, 11, and 12 of the Indictment, which charged him with six counts of interference with interstate commerce by violence, in violation of 18 U.S.C. § 1951(a), and one count of possessing and brandishing one or more firearms during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). (ECF Nos. 42, 45.) Under the terms of his Amended Plea Agreement (ECF No. 45), and under the provisions of Rule 11(c)(1)(C)[1] of the Federal Rules of Criminal Procedure, Petitioner agreed to a sentence of between 180 and 240 months of imprisonment. (Id. at ¶ 9(b).) By Judgment entered on June 15, 2016, the Court imposed an aggregate term of 200 months' imprisonment, to be followed by five years supervised release. (ECF No. 66.) Petitioner did not file a timely appeal. On April 24, 2017, the Court denied his Motion for Leave to Appeal. (ECF No. 72.)

         On May 16, 2017, Petitioner filed this Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 73.) On January 25, 2018, the Court issued an Opinion and Order dismissing all of Petitioner's claims, with the exception of his claim of the denial of the effective assistance of counsel and prosecutorial misconduct, as having been waived under the explicit terms of Petitioner's negotiated Amended Plea Agreement. (ECF No. 81.)

         Motion for Leave to Amend and Supplement

         Petitioner requests to amend the motion to vacate sentence under 28 U.S.C. § 2255 to include additional argument and supplemental authority in support of his claim that his attorney performed in a constitutionally ineffective manner by failing to introduce the psychological report of Dr. David J. Tennenbaum as mitigating evidence in support of a downward departure at sentencing. Petitioner requests to withdraw any remaining allegations of the denial of the effective assistance of counsel. (ECF No. 87, PAGEID # 441.) Respondent does not oppose Petitioner's requests.

         The motion to amend (ECF No. 87), hereby is GRANTED.

         Thus, the sole issues now remaining for this Court's review include Petitioner's claim of the denial of the effective assistance of counsel at sentencing, based on his attorney's alleged failure to present a Tennenbaum's psychological evaluation as mitigating evidence and an apparent claim of prosecutorial misconduct. (See ECF No. 73, PAGEID # 317, 319.). For the reasons that follow, both of these claims plainly lack merit.

         Standard of Review

         In order to obtain relief under 28 U.S.C. § 2255, a petitioner must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States, the trial court lacked jurisdiction, the sentence was in excess of the maximum sentence allowed by law, or the judgment or conviction is “otherwise subject to collateral attack.” United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). In the absence of constitutional error, the question is “whether the claimed error was a ‘fundamental defect which inherently results in a complete miscarriage of justice.'” Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428-429 (1962)); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). However, “‘[a] § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exception circumstances.'” DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (quoting United States v. Brown, 62 F.3d 1418 (6th Cir. 1995) (unpublished)). Further, if a petitioner fails to raise a non-constitutional claim at trial or on direct appeal, he or she has waived the matters for collateral review except where the errors amount to something akin to a denial of due process. Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained on a motion to vacate under § 2255 unless the petitioner shows: (1) cause and actual prejudice sufficient to excuse his failure to raise the claims previously; or (2) that he is “actually innocent” of the crime. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal citations omitted).

         Ineffective ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.