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Shaver v. United States

United States District Court, E.D. Tennessee

May 31, 2019

ARTHUR ALAN SHAVER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN UNITED STATES DISTRICT JUDGE.

         Federal inmate Arthur Alan Shaver has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Respondent has filed a response in opposition to the motion. Having considered the pleadings and the record, along with the relevant law, the Court finds that it is unnecessary to hold an evidentiary hearing, [1] and Shaver's § 2255 motion will be denied.

         I. BACKGROUND FACTS AND PROCEDURAL HISTORY

         In 2012, Shaver pleaded guilty and was convicted of committing a Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) [Doc. 92 in No. 3:12-CR-2]. As part of his plea agreement, Shaver waived his right to file for relief pursuant to § 2255, save for claims of ineffective assistance of counsel or prosecutorial misconduct [Doc. 43 ¶ 12(b) in No. 3:12-CR-2]. Thereafter, the Court sentenced Shaver to an aggregate term of 132 months' imprisonment [Doc. 92 in No. 3:12-CR-2]. Shaver did not appeal.

         In June 2016, Shaver filed the instant § 2255 motion for a lesser sentence in light of the holding of Johnson v. United States, which invalidated the residual clause of the Armed Career Criminal Act (“ACCA”). Johnson v. United States, 135 S.Ct. 2551, 2563 (2015) [Doc. 1]. The United States responded to the motion on July 18, 2016 [Doc. 2].

         II. LEGAL STANDARD

         After a defendant has been convicted and exhausted his appeal rights, a court may presume that “he stands fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164 (1982). A court may grant relief under 28 U.S.C. § 2255, but the statute “does not encompass all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, collateral attack limits a movant's allegations to those of constitutional or jurisdictional magnitude, or those containing factual or legal errors “so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citation omitted); see also 28 U.S.C. § 2255(a).

         III. DISCUSSION

         A. Waiver

         In his plea agreement, Shaver expressly “waive[d] the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255” with the exception of “claims of ineffective assistance of counsel or prosecutorial misconduct” [Doc. 43 ¶ 12(b) in No. 3:12-CR-2]. A knowing and voluntary waiver of § 2255 claims is enforceable. Davila v. United States, 258 F.3d 448, 450-51 (6th Cir. 2001). In this case, there is no dispute whether Shaver entered into a knowing and voluntary plea agreement. Therefore, Shaver's claims, which are not for ineffective assistance of counsel or prosecutorial misconduct, are barred by his § 2255 waiver.

         It is irrelevant that Shaver entered into his waiver before Johnson was decided. After all, a “plea agreement allocates risk, and the possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements.” Slusser v. United States, 895 F.3d 437, 440 (6th Cir. 2018) (citation and quotation marks omitted). Accordingly, Shaver has waived his right to seek relief in a § 2255 proceeding.

         B. Merits

         Even if Shaver's right to seek relief under § 2255 were not waived, his claim would fail because Johnson did not invalidate the residual clause in § 924(c)(3)(B).

         The residual clause of the ACCA struck down as unconstitutionally vague in Johnson defined a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that “otherwise involves conduct that presents a serious potential risk of physical ...


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