United States District Court, S.D. Ohio, Western Division, Dayton
A. Sargus, Jr. District Judge
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.
an action on a Motion to Vacate under 28 U.S.C. § 2255
brought pro se by Defendant Frederick McShan to
obtain relief from his conviction in this Court on charges of
conspiracy and money laundering. It is before the Court on
McShan's § 2255 Motion (ECF No. 489), the
Government's Response (ECF No. 493), and McShan's
Reply (ECF No. 494).
Magistrate Judge reference in the case was recently
transferred to the undersigned to help balance the Magistrate
Judge workload in the District. It remains for final
disposition before District Judge Sargus.
was indicted with six others on October 22, 2015, and charged
with conspiracy to distribute heroin (ECF No. 20). The grand
jury returned a Superseding Indictment on February 4, 2016
(ECF No. 84). The case was tried to a jury in March 2017 and
the jury returned verdicts on March 10, 2017 (ECF Nos. 312,
315). McShan was sentenced on March 12, 2017 (Judgment, ECF
No. 413) and he appealed to the Sixth Circuit (ECF No. 415).
That court affirmed the conviction. United States v.
McShan, 757 Fed. App'x 454 (6th Cir. Nov.
30, 2018), cert. denied, 139 S.Ct. 2032 (2019).
McShan subsequently filed his Motion to Vacate on September
3, 2019, within the time allowed by the statute of
pleads the following grounds for relief:
Ground One: Ineffective Assistance of
Supporting Facts: Appellate counsel failed
to develop McShan's double jeopardy claim based on the
reimpaneling [sic] of the jury.
Ground Two: Reempaneling the jury was a
violation of the Double Jeopardy Clause
Supporting Facts: The Court erred by
reempanelling the jury, resulting in a void first verdict and
a null second verdict.
Ground Three: The Court lost jurisdiction
once the jury [was] discharge[d].
Supporting Facts: The Court lost
jurisdiction when an [sic] jury is discharge[d]. The Court
can't reopen a case an [sic] fix any error once the jury
Ground Four: [Ineffective Assistance of
Supporting Facts: My lawyer was ineffective
for not making an issue to argue double jeopardy. To be
charged and found guilty of the same charge is double
jeopardy if both conviction[s] is [sic] a lesser and one a
greater offense is the same for double jeopardy.
Ground Five: Due Process Violation (Fifth
Supporting Facts: Conspiracy suppose[d] to
be as a whole one amount for everyone in the conspiracy for
sentence purpose. Did not raise this in my appeal because my
lawyer ineffective counsel.
Ground Six: Ex Parte Communication with
Discharge[d] Jury due process violation an[d] 6[th]
Supporting Facts: Any private contact with a
jury if not made in pursuance of known rules is prejudicial.
Judge talk[ed] to the jury private without counsel. That was
an ex parte communication.
(Motion, ECF No. 489, PageID 4451-57.) The Motion to Vacate
has an attached copy of part of the Sixth Circuit decision,
an excerpt from the trial transcript, a two-page Memorandum
of Law on ineffective assistance of counsel (PageID 4475-76),
Defendant's Affidavit (PageID 4477-83) a second Affidavit
of Defendant (PageID 4484-88), another Memorandum of Law on
lack of jurisdiction (PageID 4489-96), a Notice of Void
Judgment (PageID 4497-4503), a Certificate of Service (PageID
4504), a Memorandum of Law on due process under the Fifth
Amendment (PageID 4504-06), and a Memorandum of Law on ex
parte communications (PageID 4507).
Answer, the United States invokes the law of the case
doctrine to preclude reconsideration by this Court of claims
already considered and rejected by the Sixth Circuit on
direct appeal (ECF No. 493, PageID 4516-18). The Government
defends against McShan's ineffective assistance claims on
the merits. Id. at PageID 4518-20.
Reply McShan argues the Government has misconstrued his
Motion and mischaracterized the procedural history of the
case. He reminds the Court that as a pro se
litigant, he is entitled to a liberal construction of his
pleadings. When the sections of his Motion are read together,
he asserts, “it is easy to see that movant has alleged
that his appellate counsel was ineffective in arguing the
re-poling [sic] issue.” (ECF No. 494, PageID 4522).
McShan discusses at some length his double jeopardy argument
and precedent requiring reversal of a conviction if there ...