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Leonard M. Shuster v. Secretary

December 21, 2011

LEONARD M. SHUSTER, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, ET AL., RESPONDENTS.



ORDER

THIS CAUSE comes before the Court upon Leonard M. Shuster's Petition for Writ of Habeas Corpus (Dkt. #1) filed pursuant to 28 U.S.C. § 2254, Respondents' Response (Dkt. #11), and Petitioner's Reply (Dkt. #13). Upon consideration, the Court concludes that the petition is due to be denied on the merits.

According to the State, Shuster "was charged with one count of use of internet to lure a child, one count of traveling to meet minor for illegal sexual conduct, 25 counts of transmitting pornography via electronic device or equipment, 22 counts of possession of child pornography, one count of attempted lewd and lascivious battery, one count of attempted sexual battery on a victim less than 12, and 523 counts of obscene communication." Response (Dkt. #11), pp. 1-2. Shuster was facing a lengthy state criminal sentence and, additionally, federal prosecutors were aware of Shuster's state case. The federal prosecutors told both the state prosecutor and Shuster's defense lawyers that if plea negotiations broke down with the State, Shuster would be charged with federal offenses, at least one of which carried a 30 year minimum mandatory sentence. In fact, Shuster's defense lawyers were told that if they engaged in any type of significant adversarial discovery, "the Feds would pick up the charges." Transcript of change of plea and sentencing hearing, Appendix, Exh. D, Response, p. 21.

Shuster's attorneys were able to negotiate a plea with the State in which Shuster would only get fifteen years imprisonment followed by ten years of sex offender probation. Shuster agreed and executed a written plea agreement with the State. As an added benefit, the federal government agreed not to file any federal charges.

Shuster now brings two claims of ineffective assistance of counsel, both of which were previously brought in his state post-conviction motion:

(1) defense counsel coerced plea by telling petitioner he would not receive a state trial and would face new federal charges with a minimum mandatory 30 year sentence, and

(2) trial counsel failed to depose state witnesses.

These claims were denied by the post-conviction court without an evidentiary hearing. An evidentiary hearing was not necessary there, and is not necessary here, because both of these issues were explained in open court on the record. The defense lawyer, Mr. Schemlier, was careful enough to place the federal government's agreement not to prosecute on the record. He confirmed that both he and the state prosecutor had received the same promise from the federal prosecutor:

MR. SCHEMLIER: (Defense counsel) If I could make one other statement.

THE COURT: Yes, sir.

MR. SCHEMLIER: That the Federal statute which is applicable to one of the charges here requires a mandatory minimum thirty-year prison sentence and we didn't engage in any type of discovery with regard to taking of depositions. And that was because we were advised by the Federal prosecutor that once we participate in any type of significant adversarial discovery process, the Feds would pick up the charges. And he's entering a plea today because the Federal Government has agreed that they will not pursue such prosecution.

THE COURT: Okay.

MS. OLSON: (State prosecutor) That's absolutely correct, Your Honor. I had many conversations with the Federal Prosecutor about this case, as well. And it was determined that we would proceed with State charges before the Federal Government became involved. And if the discussions broke down at the State level that the Federal Government would definitely be proceeding in this case.

THE COURT: Okay.

MR. SCHEMLIER: And Mr. Scheller's personally spoke (sic) with the Federal Prosecutor and confirmed all the ...


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