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United States v. McShan

United States District Court, S.D. Ohio, Western Division, Dayton

December 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
FREDERICK A. McSHAN, Defendant.

          Edmund A. Sargus, Jr. District Judge

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.

         This is 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).

         The 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.

         Litigation History

         McShan 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 limitations.

         McShan pleads the following grounds for relief:

Ground One: Ineffective Assistance of Appellate Counsel
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 [is] discharge[d].
Ground Four: [Ineffective Assistance of Counsel]
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 Amendment)
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] Amendment.
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).

         In its 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.

         In his 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 ...


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