Schaap v. USA

Filing 5

OPINION AND ORDER The section 2255 motion is DENIED AS MOOT. The Amended Motion to Vacate, Correct, or Set Aside Petitioners Sentence is DENIED. Schaaps request for an evidentiary hearing is also DENIED. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE. Additionally, the Court DECLINES to issue a certificate of appealability. The Clerk is FURTHER ORDERED to distribute a copy of this order to Jack Allen Schaap. Signed by Judge Rudy Lozano on 8/26/14. cc:petnr(kjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.
JACK ALLEN SCHAAP,
Defendant/Petitioner.

)
)
)
)
)
)
)
)
)

NO. 2:12-cr-131
2:14-cv-87

OPINION AND ORDER
This matter is before the Court on the: (1) Motion To Vacate,
Correct, or Set Aside The Petitioner’s Sentence Pursuant to 28
U.S.C. § 2255, filed by pro se Petitioner, Jack Schaap, on March
19, 2014 (DE #45); and (2) Amended Motion to Vacate, Correct, or
Set Aside The Petitioner’s Sentence Pursuant to 28 U.S.C. § 2255,
filed by counsel, on June 2, 2014 (DE #55).

For the reasons set

forth below, the section 2255 motion (DE #45) is DENIED AS MOOT.
The Amended Motion to Vacate, Correct, or Set Aside Petitioner’s
Sentence (DE #55) is DENIED.
hearing is also DENIED.
WITH PREJUDICE.

Schaap’s request for an evidentiary

The Clerk is ORDERED to DISMISS this case

Additionally, the Court DECLINES to issue a

certificate of appealability.

The Clerk is FURTHER ORDERED to

distribute a copy of this order to Jack Allen Schaap, #12409-027,
Ashland FCI, Inmate Mail/Parcels, P.O. Box 6001, Ashland, Kentucky

41105, or to such other more current address that may be on file
for the Petitioner.

BACKGROUND
On September 18, 2012, an information was filed against
Defendant,

Jack

Allan

Schaap.

(DE

#1.)

Count

1

alleged

transporting a minor in interstate commerce with intent to engage
in sexual activity for which any person can be charged with a
crime, in violation of 18 U.S.C. § 2423(a).
The same day the information was filed, Defendant and the
Government entered into a plea agreement and filed it with the
Court.

(DE #2.)

In the plea agreement, Schaap agreed to waive his

right to indictment by a federal grand jury, and agreed to plead
guilty to the charge set forth in the Information.
7(a).)1
forth

(Id. ¶¶ 2,

The plea agreement, signed by Schaap, specifically set
the

statutory

mandatory

minimum

sentence

of

10

years

imprisonment Schaap faced, and the maximum possible term of life
imprisonment:
I understand that the statutory mandatory minimum
term of incarceration for my conviction of the
offense charged in Count 1 [] is ten (10) years
imprisonment and the maximum possible term of
imprisonment I face is a lifetime term, followed by
a minimum of five (5) years of supervised release
and a maximum term of up to lifetime supervised

1

In exchange for the plea, the Government agreed not to file additional
charges against Defendant, and four other prosecutor’s offices agreed not to
criminally charge Defendant as well. (DE #2, ¶ 7(c).)

2

release following my incarceration.
(Id. ¶ 7(b).)

The plea also set forth agreements reached by the

parties, including that the Government agreed based upon the facts
of the case that “a sentence of 120 months incarceration is a fair
and reasonable sentence in this case.”

(Id., ¶ 7(d)(iii).)

Additionally, the plea agreement provided that the sentencing
“agreements [] are not binding upon the Court . . . .”

(Id. ¶ 7(d)

(emphasis in original).)
The

plea

agreement

also

contained

an

appellate

waiver.

Specifically, the document set forth in pertinent part:
I also understand that no one can predict the
precise sentence that will be imposed and that the
Court has jurisdiction and authority to impose any
sentence within the statutory maximum set for my
offenses as set forth in this plea agreement; with
this understanding and in consideration of the
Government’s entry into this plea agreement, I
expressly waive my right to appeal or to contest my
conviction or the sentence imposed, including the
manner in which my conviction or sentence was
determined or imposed, to any Court on any ground,
including any claim of ineffective assistance of
counsel unless the claimed ineffective assistance
of counsel relates directly to this waiver or its
negotiation, including an appeal under Title 18,
United States Code, Section 3742 or any postconviction proceeding, including but not limited
to, a proceeding under Title 28, United States
Code, Section 2255.
(Id. ¶ 7(e).)
Schaap’s change of plea hearing was held on September 26,
2012.

(See transcript, DE #47.)

the beginning of the hearing.

Schaap was placed under oath at

(DE #47, p. 3.)
3

He was represented

at the hearing by the same counsel who signed his plea agreement,
attorneys Paul Stracci and Alison Benjamin.

The Court began by

asking

with

Schaap

if

he

was

“fully

satisfied

the

counsel,

representation and advice given to [him] in this case by Mr.
Stracci and Ms. Benjamin as [his] attorneys?” and he replied,
“[y]es, I am.”

(Id., p. 7.)

The Court then asked Schaap to read

his plea agreement in Court, he also affirmed that he read it
earlier with his attorneys, and he understood and agreed with the
plea agreement.

(Id., p. 9.)

The Court reviewed the maximum and

minimum amounts of jail time Schaap could receive, and also
confirmed that Defendant understood that the Court would ultimately
decide Defendant’s sentence, and that the Guidelines were not
binding.

(Id., pp. 14-17, 26, 34-36.)

The Court also confirmed

that no one, including his lawyer, made him any predictions or
promises as to what his precise sentence would be.

(Id., p. 36.)

Probation prepared a Presentence Report (“PSR”) prior to
Schaap’s

sentencing

hearing.

(DE

#30.)

With

credit

for

acceptance of responsibility, Defendant had a total offense level
of 35.

(Id., p. 23.)

With a criminal history computation of 0,

the PSR calculated his Guideline range between 168 and 210 months.
(Id., pp. 23, 33.)

The Court confirmed at the sentencing hearing

that Schaap had received and reviewed the PSR and addendum with his
counsel.

(DE #44, p. 4.)

Defendant filed a sentencing memorandum, attaching letters in

4

support, and requesting a below-Guidelines sentence of 120 months.
(DE #19, p. 1.)

Schaap’s own memorandum concedes that “[a]

violation of § 2423(a) carries a mandatory minimum 10 year term
(120 months) of imprisonment up to a lifetime of imprisonment.”
Id. The Government also filed a sentencing memorandum, also asking
the Court for the agreed upon recommendation of a ten-year period
of incarceration.
PSR.

(DE #37, p. 1.)

There were no objections to the

(DE ##31, 32.)
The Court held the sentencing hearing on March 20, 2013, and

sentenced Schaap to a term of imprisonment of 144 months, which was
below the Guideline range.

(DE #39.)

At the hearing, both sides

urged the Court to follow the parties’ sentencing recommendation of
120 months.

(DE #44, pp. 9-11; 40-42.)

later that day on March 20, 2013.

Judgment was entered

Schaap did not file a direct

appeal with the Seventh Circuit.
Schaap filed a motion under section 2255 on March 19, 2014 (DE
#45). He also filed a letter asking for additional time to “fil[e]
an addendum to the motion, including the memorandum of law.”

(DE

#46.) This Court granted the extension of time, ordering Schaap to
file a memorandum by June 2, 2014.

(DE #48.)

On June 2, 2014,

Schaap, through his new counsel, Charles Alex Murray, filed his
memorandum in support.

(DE #52.)

Also on June 2, 2013, Schaap,

through his counsel, filed what they entitled “Amended Motion to
Vacate, Correct, or Set Aside the Petitioner’s Sentence Pursuant to

5

28 U.S.C. § 2255.”

(DE #55.)

The Amended Motion (DE #55) is

almost identical to Schaap’s initial motion under section 2255 (DE
#45).

The memorandum in support of the amended motion to vacate

(DE #56) is identical to the memorandum at DE #52.

As such, this

Court DENIES the Motion to Vacate (DE #45) as MOOT, and will rule
upon the Amended Motion to Vacate (DE #55).2
The Court will consider the arguments set forth in this
memorandum.

Schaap articulates four main arguments: (1) the

collateral review waiver in the plea agreement does not preclude
his challenges; (2) he was denied effective assistance of counsel
when his counsel promised him a sentence between 18 and 120 months;
(3) he was denied effective assistance of counsel when “he was
sentenced as a fully culpable offender, despite the presence of
factors reducing Petitioner’s culpability”; and (4) counsel was
ineffective when he “failed to object to the district court’s
misunderstanding of its ability to vary from the Guidelines.”
#55, p. 6.)

(DE

The Government filed a response to the amended

memorandum on July 3, 2014 (DE #58), and Schaap filed a reply on
August 11, 2014 (DE #62).

As such, this motion is fully briefed

2

As far as the Court can tell, the Amended Motion to Vacate
(DE #55) is almost word-for-word the same as the first motion to
vacate (DE #45), with the exception of a few sentences added on
page 2. And the memorandum in support of the amended motion to
vacate (DE #56) is word-for-word identical to the memorandum in
support of the original motion (DE #52). In the interests of
justice, the Court wanted to make sure every argument presented
by Schaap was considered and ruled upon, so chose to rule upon
the amended motion to vacate.
6

and ready for adjudication.

DISCUSSION
Habeas corpus relief under 28 U.S.C. section 2255 is reserved
for "extraordinary situations."
812, 816 (7th Cir. 1996).

Prewitt v. United States, 83 F.3d

In order to proceed on a habeas corpus

petition pursuant to 28 U.S.C. section 2255, a federal prisoner
must show that the district court sentenced him in violation of the
Constitution or laws of the United States, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject
to collateral attack.
A

section

2255

Id.
motion

is

recapitulation of a direct appeal.

neither

a

substitute

for

nor

Id.; Belford v. United States,

975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).

As a

result:
[T]here are three types of issues that a
section 2255 motion cannot raise: (1) issues
that were raised on direct appeal, absent a
showing
of
changed
circumstances;
(2)
nonconstitutional issues that could have been
but were not raised on direct appeal; and (3)
constitutional issues that were not raised on
direct appeal, unless the section 2255
petitioner
demonstrates
cause
for
the
procedural default as well as actual prejudice
from the failure to appeal.
Belford, 975 F.2d at 313.

Additionally, aside from demonstrating

"cause" and "prejudice" from the failure to raise constitutional

7

errors

on

direct

appeal,

a

section

2255

petitioner

may

alternatively pursue such errors after demonstrating that the
district court's refusal to consider the claims would lead to a
fundamental miscarriage of justice.

McCleese v. United States, 75

F.3d 1174, 1177 (7th Cir. 1996). Here, the Court assessed Schaap’s
claims with these guidelines in mind.

Waiver
Schaap first claims that “[t]he collateral review waiver
included in the plea agreement does not preclude the challenges
raised

herein.”

(DE

#55,

p.

6.)

The

Seventh

Circuit

has

recognized the validity of plea agreement waivers, and will enforce
the waiver unless there is a claim that the waiver was entered into
involuntarily, or that the waiver was a result of the ineffective
assistance of counsel during the negotiation of the waiver.

In

Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999), the
Seventh Circuit held that only two claims could be raised on a
section 2255 motion by an individual who waived his right to
appeal:

(1) the defendant received ineffective assistance of

counsel in negotiating the waiver; or (2) that the waiver was not
knowingly and voluntarily made.

Jones stated that courts should

be:
Mindful of the limited reach of this holding,
we reiterate that waivers are enforceable as a
general rule; the right to mount a collateral
attack pursuant to § 2255 survives only with
8

respect to those discrete claims which relate
directly to the negotiation of the waiver.
Id. at 1145.

In Mason v. United States, 211 F.3d 1065, 1069 (7th

Cir. 2000), the Seventh Circuit applied its holding in Jones to bar
an ineffective assistance of counsel claim that related only to the
petitioner's performance with respect to sentencing.

The Court

found that, "[b]ecause the challenge has nothing to do with the
issue of a deficient negotiation of the waiver, [petitioner] has
waived

his

right

to

seek

post-conviction

relief."

Id.

Additionally, the Court stated that the following analysis should
be considered in determining whether a claim has been waived:
[C]an the petitioner establish that the waiver
was not knowingly or voluntarily made, and/or
can he demonstrate ineffective assistance of
counsel with respect to the negotiation of the
waiver?
Id.
It is undisputed that in his plea agreement, Schaap waived his
right to appeal or contest his conviction and sentence “to any
Court on any ground, including any claim of ineffective assistance
of counsel unless the claimed ineffective assistance of counsel
relates directly to this waiver or its negotiation, including any
appeal under . . . Title 28, United States Code, Section 2255.”
(Plea Agreement, DE #2, ¶ 7(e).)

As the Government notes, this

waiver of appeal language is “as express as they come.”

United

States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) (noting “if
defendants could retract their waivers . . . then they could not
9

obtain

concessions

petitioner]

by

exchanged

promising
the

right

not
to

to

appeal

appeal

for

.

.

.

[the

prosecutorial

concessions; he cannot have his cake and eat it too.”).

Moreover,

this Court made sure Schaap understood the waiver by exhaustive
questioning during the change of plea hearing:

Q. Okay. Let’s go on to subparagraph (e). There, Mr. Schaap,
we’re talking about appeals. Do you understand that in all
criminal cases a defendant has a right to appeal his
conviction and/or sentence in a case?
A. Yes, sir, I do.
Q. In this case you have acknowledged that I have the
jurisdiction and authority to sentence you up to the maximum
provided for by the statute. Remember you and I talked about
that before? That was life imprisonment, a fine of up to
$250,000 or a combination of both of those, up to life
supervised release, restitution, forfeiture in this case and
a $100 special assessment.
A. Yes, sir, I do.
Q. Mr. Schaap, what you’re basically doing in this paragraph
is you’re giving up all of your rights to an appeal. There’s
some rights you don’t give up, like jurisdiction. But for all
practical purposes, you’re giving them all up. So down the
road, if you don’t like the sentence that I give you, if you
don’t like some of my rulings, you’re not going to be able to
tell Ms. Benjamin or Mr. Stracci, that judge went wild on me,
I want to appeal, because you will have given up that right.
Do you understand that?
A. I do, sir.
Q. Do you understand that that includes incompetence of
counsel except as it relates to this waiver and/or its
negotiation?
A. Yes, sir, I do.
Q. You also understand that the government in this case is not
10

giving up their right to an appeal?
A. Yes, sir, I do.
Q. Are you sure this is what you want to do?
A. Yes, sir, it is.
(DE #47, pp. 26-27.)
There is ample evidence Schaap’s appeal waiver was made
knowingly and voluntarily. The “whole point of the plea proceeding
(the Rule 11 colloquy) is to establish that the plea was knowingly
and voluntarily made.” United States v. Ellison, 835 F.2d 687, 693
(7th Cir. 1987); see also United States v. White, 597 F.3d 863, 868
(7th Cir. 2010) (stating that “[v]oluntary responses made by a
defendant

under

binding.”).

oath

before

an

examining

judge

.

.

.

are

“[A] careful plea colloquy under Rule 11 ensures that

the guilty plea is knowing and voluntary.” United States v. Schuh,
289 F.3d 968, 975 (7th Cir. 2002).

To the extent that Schaap is

now claiming his waiver was not knowingly and voluntarily made,
“[s]elf-serving statements offered after the plea hearing generally
fall in the face of contradictory voluntary statements made by the
defendant during a plea hearing - the latter are presumed true.”
United States v. Mosley, 35 F.3d 569, 1994 WL 503016, at *3 (7th
Cir. Sept. 14, 1994) (citing Ellison, 835 F.2d at 693).

In sum,

based upon the plain language of the plea agreement and the lengthy
colloquy this Court held with Schaap during his plea hearing, this
court finds that Schaap made a knowing and voluntary appeal waiver,

11

and that it is enforceable.

Ineffective Assistance of Counsel
Schaap’s

second

main

argument

is

that

his

counsel

was

ineffective during plea negotiations by telling Schaap “that, if he
entered a guilty plea, his sentence would be 120 months maximum,
but was more likely to be between three and four years, and perhaps
as low as eighteen months incarceration.”

(DE #56, p. 7.)

He

argues that “[b]ased upon this promise, [he] entered a guilty plea
when he otherwise would have proceeded to trial.”

Id.

Claims of ineffective assistance of counsel are governed by
the 2-pronged test set forth in Strickland v. Washington, 466 U.S.
668 (1984).

To prevail on an ineffective assistance of counsel

claim, the Defendant must first show the specific acts or omissions
of

his

attorney

"fell

below

an

objective

standard

of

reasonableness" and were "outside the wide range of professionally
competent assistance."

Barker v. United States, 7 F.3d 629, 633

(7th Cir. 1993) (quoting Strickland, 466 U.S. at 690); see also
Hardamon v. United States, 319 F.3d 943, 948 (7th Cir. 2003);
Anderson v. Sternes, 243 F.3d 1049, 1057 (7th Cir. 2001).

The

second Strickland prong requires the Defendant to show prejudice,
which entails showing by "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different."

Strickland,

12

466 U.S. at 694.

Regarding the deficient-performance prong, great deference is
given to counsel's performance and the defendant has a heavy burden
to

overcome

the

strong

presumption

of

effective

performance.

Strickland, 466 U.S. at 690; Coleman v. United States, 318 F.3d
754, 758 (7th Cir. 2003) (defendant “has a difficult burden of
proof

as

he

must

overcome

the

strong

attorney’s performance was effective.”).

presumption

that

his

Defendant must establish

specific acts or omissions that fell below professional norms.
Strickland, 466 U.S. at 690.

If one prong is not satisfied, it is

unnecessary to reach the merits of the second prong.

Id. at 697.

Furthermore, because Schaap pled guilty in this case, he must
establish his plea was rendered involuntary by counsel’s deficient
performance and that were it not for his counsel’s objectively
unreasonable

performance,

he

would

not

have

pleaded

guilty.

Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000).
Schaap’s claim that his attorney was ineffective by promising
a 10 year maximum term of imprisonment, but likely less, is
directly contradicted by the content of Schaap’s plea agreement and
Schaap’s numerous statements, made under oath during his change of
plea hearing.

The plea agreement specifically states that the

“statutory mandatory minimum term of incarceration . . . is ten
(10)

years

imprisonment

and

the

maximum

imprisonment I face is a lifetime term.”

possible

term

(DE #2, ¶ 7(b).)

of
The

Court also discussed the potential sentence Schaap could receive.

13

The Court emphasized:
Mr. Schaap, I have no idea at this time what
sentence, if any, you’re going to get in this case.
I won’t make that decision until after a
presentence investigation report is prepared by the
probation department, and you, your attorneys, and
the government all have an opportunity to challenge
that report. Right now what I’m going to do is I
am going to tell you, based upon the statute that
you’re pleading guilty to and based upon the count
of the information that you’re pleading guilty to,
what’s the most that you could get, what’s the
least that you could get and obviously your
sentence could be somewhere in between.
Do you
understand that?
(DE #47, p. 12.)

Schaap replied, “Yes, sir, I do.”

Id.

This

Court then explained the term mandatory minimum to Schaap, stating
“[w]hat that basically means is that you have to serve at least a
certain amount of time either of imprisonment and/or supervised
release.

You understand that?”

“[y]es, sir.”

(Id., p. 14.)3

(Id., p. 13.)

Schaap answered,

The Court then specifically set

forth the possible length of imprisonment for Schaap, stating
“[t]he least that you could get would be ten years in jail . . . Do
you understand that?” and Schaap replied, “[y]es, sir, I do.”
(Id., p. 15.)

This Court repeatedly asked Schaap if he understood

the possible sentence he could receive was 10 years in jail and the
maximum was life imprisonment, and Schaap confirmed he understood.
3

In his reply, Schaap claims he did not attend law school and does not
have an extensive history of involvement with the criminal history system,
thus did not understand terms like “statutory maximum sentence.” (DE # 62, p.
3.) This Court went out of its way to explain legal terms in laymans
language, and certainly could not have said more plainly that “[t]he least
that you could get would be ten years in jail . . . Do you understand that?”
and Schaap replied, “[y]es, sir, I do.” (DE #47, p. 15.)

14

(Id., pp. 14-15, 26, 34.)

Schaap also acknowledged that the

parties’ recommendation of a 10-year sentence was not binding upon
the Court.

(Id., pp. 17, 35.)

At no point during his change of

plea hearing, or during his sentencing hearing, did Schaap express
confusion or question the Court about the amount of jail time he
was potentially facing.
Importantly, Schaap was specifically asked during his change
of plea hearing if his lawyers had “made any other or different
promise or assurance” regarding his possible sentence in an “effort
to induce or cause [him] to enter a plea of guilty” and he
answered, “[n]o, they have not, sir.”

(DE #47, pp. 31-32.)

Later

during the proceeding, the Court again asked whether “anyone,
including [Schaap’s] own layer, any lawyer for the government, any
government agent or anyone else [had] made any prediction, prophecy
or promise to [him] as to what [his] precise sentence will be” and
Schaap

replied,

representations

“No
made

they
by

have
Schaap,

not.”
under

(Id.,

at

36.)

oath,

during

the

These
plea

colloquy, “are presumed to be true.” United States v. Chavers, 515
F.3d 722, 724 (7th Cir. 2008); see also United States v. Ramirez,
Nos. 2:05-cr-43, 2:09-cv-306, 2010 WL 457132, at *4 (N.D. Ind. Feb.
3, 2010) (quoting United States v. Mosley, 35 F.3d 569, 1994 WL
503016, at *3 (7th Cir. Sept. 14, 1994) (“[s]elf-serving statements
offered after the plea hearing generally fall in the face of
contradictory voluntary statements made by the defendant during a

15

plea hearing - the latter are presumed true.”)).
Schaap cites Machibroda v. United States, 368 U.S. 487 (1962),
and Fontaine v. United States, 411 U.S. 213, 214 (1973), in support
of his argument that pleading guilty does not mean that he cannot
obtain postconviction collateral relief.

Although these cases

found the defendants had alleged sufficient acts of coercion to
entitle them to evidentiary hearings, the cases did not “in the
least reduce the force of the original plea hearing.”
v. Allison, 431 U.S. 63, 75 (1977).

Blackledge

The United States Supreme

Court clarified that:
[T]he representations of the defendant, his lawyer,
and the prosecutor at such a hearing, as well as
any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent
collateral proceedings.
Solemn declarations in
open court carry a strong presumption of verity.
The
subsequent
presentation
of
conclusory
allegations unsupported by specifics is subject to
summary dismissal, as are contentions that in the
face of the record are wholly incredible.
Id. at 73-74.

Accordingly, Schaap’s claim that his lawyers were

ineffective for promising a sentence below the statutory minimum
allowed

under

18

U.S.C.

§

2423(a)

fails

in

the

face

of

contradictory statements made during his change of plea hearing.
In light of the specific plea language and this Court’s detailed
questioning (and Schaap’s very specific and unequivocal answers)
during the change of plea hearing, this Court finds that Schaap
indeed knowingly and voluntarily entered a valid guilty plea.
Schaap also argues that his counsel was ineffective when he
16

“was sentenced as a fully culpable offender, despite the presence
of factors reducing the Petitioner’s culpability,” and that the
“sexual aggressiveness of Jane Doe” should reduce his culpability.
(DE #56, pp. 8, 14.)

Specifically, Schaap now claims his counsel

should have presented the following information:
The counseling had to occur because Doe had been
expelled from school for engaging in sexual
conduct. Doe willingly participated in talk of a
sexual nature via electronic device and in person
with the Petitioner. It was not Doe who accused
the Petitioner and sought prosecution in this
matter. No doubt exists that the Petitioner should
have resisted Doe’s advances, but the Petitioner
submits that his actions did not serve to destroy
Doe in the manner that often occurs when underage
individuals are victimized, as Doe had already
engaged in all of the behavior engaged in with the
Petitioner with other men.
(Id., p. 5.)

This argument does not relate to the waiver or its

negotiation, thus, it is foreclosed by the appellate waiver in the
plea agreement.

See United States v. Thomas, 279 Fed. Appx. 413,

414 (7th Cir. 2008) (finding a sentencing challenge “frivolous
because

[the

defendant]

gave

up

sentence” when he waived appeal).

his

right

to

challenge

his

Even assuming, arguendo, this

argument was not waived, it would still fail on the merits.
The second Strickland prong requires a showing of prejudice,
of “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland,

466

U.S.

at

694.

Here,

Schaap

cannot

show

any

prejudice from the exclusion of these allegations about the victim.
17

Indeed, the offense Schaap was charged with was causing Jane Doe to
be transported across state lines with the intent that she engage
in sexual activity.

See DE #1; 18 U.S.C. § 2423(a).

This Court

informed Schaap during the change of plea hearing that the elements
of the offense are:
First, you transported Jane Doe from the State of
Indiana to the State of Illinois and from the State
of Indiana to the State of Michigan; second, that
you did so with the intent that Jane Doe engage in
sexual activity for which you can be charged with a
criminal offense; and, third, that Jane Doe was
under the age of 18 years at that time.
(DE #47, p. 38.)

The alleged sexual aggressiveness of the victim,

or her previous experience has no bearing on any element in the
charge.
a

case

Federal Rule of Evidence Rule 412(a)(1) provides that in
involving

allegations

of

sexual

misconduct,

“evidence

offered to prove that a victim engaged in other sexual behavior” is
inadmissible.

Fed. R. Evid. 412(a)(1).

Indeed, “consent is

irrelevant to a conviction under § 2423(a).”

United States v.

Bennett, 258 Fed. Appx. 671, 683 (5th Cir. 2007); see also United
States v. Rogers, 587 F.3d 816, 820 (7th Cir. 2009) (“Minors lack
the capacity to consent, and so sexual contact with a minor is
always ‘without consent.’”).

There was clearly no prejudice

suffered when Schaap’s attorney did not bring up the victim’s
alleged past or aggressiveness (indeed, this argument which is akin
to “blaming the victim” would not have sat well with the Court);
thus, this argument fails.

18

Schaap suggests that his below-Guideline, 144-month sentence
violates the Eighth Amendment’s prohibition on cruel and unusual
punishment.

(DE #56, pp. 8-15.)

it is waived.

This argument likewise fails as

Even assuming, arguendo, Schaap did not waive this

argument, it does not succeed on the merits.

In determining

whether a sentence comprises cruel and unusual punishment, courts
compare “the gravity of the offense and the harshness of the
penalty.”

United States v. Nigg, 667 F.3d 929, 938 (7th Cir. 2012)

(quotation

omitted).

insurmountable bar.”

This
Id.

factor

typically

“presents

an

The offense Schaap plead guilty to

carries with it a statutory mandatory minimum of 10 years, which
indicates that Congress considers it a serious crime.
2423(a).

18 U.S.C. §

Indeed, during the sentencing hearing in this case, this

Court noted the statutory minimum and maximum, and said, “[t]hat’s
important because it tells me that the people in Congress deem this
to be very important and that this crime is a very, very serious
crime.”

(DE #44, p. 44.)

Here, this Court gave Schaap just two

years imprisonment higher than the mandatory minimum (nowhere near
the lifetime maximum).

Additionally, the sentence is a below-

Guideline sentence (and a sentence within the Guidelines range
would be presumed reasonable on appeal).

United States v. Cheek,

740 F.3d 440, 455 (7th Cir. 2014). Schaap’s conduct was egregious.
Under the rouse of conducting religious counseling to the minor
victim, he arranged for her to be transported from Indiana to

19

Illinois twice, and from Indiana to Michigan once (for several
days), so he could engage in sexual acts with her which are
prohibited by law in those states. Clearly, Schaap’s sentence does
not violate the Eighth Amendment.
Finally, Schaap argues that he was denied effective assistance
of counsel at sentencing when his counsel “failed to object to the
district court’s misunderstanding of its ability to vary from the
Guidelines.”

(DE #55, p. 6.)

Obviously this Court understood it

could vary from the Guidelines - Probation calculated Schaap’s
Guideline range as calling for a sentence between 169 and 210
months (DE #30, ¶¶ 67, 115), yet this Court ordered a belowGuideline sentence of 144 months in prison.

Additionally, this

Court acknowledged, and indeed explained to Schaap during his
change of plea hearing that:
I don’t have to follow these guidelines. I do have
to apply them in your case.
If, after applying
them to your case, a guideline range is decided in
your case, if I find that guideline range to be
fair and reasonable, you’ll probably be sentenced
within that guideline range. If I do not find it
to be fair and reasonable, I have the discretion to
go higher or lower than that guideline range.
(DE

#47,

p.

18.)

When

asked

if

he

understood

discretion, Schaap answered, “[y]es, sir, I do.”

the
Id.

Judge’s
Thus,

Schaap’s counsel was not ineffective, because clearly this Court

20

understood its ability to vary from the Guidelines.4

Request for an Evidentiary Hearing
Schaap contends that he “is entitled to an evidentiary hearing
on these matters.”

(DE #56, pp. 2, 18.)

An evidentiary hearing

need not be held for every section 2255 motion.

Liss v. United

States, 915 F.2d 287, 290 (7th Cir. 1990). “No hearing is required
in a section 2255 proceeding if the motion raises no cognizable
claim, if the allegations in the motion are unreasonably vague,
conclusory, or incredible, or if the factual matters raised by the
motion may be resolved on the record before the district court."
Oliver v. United States, 961 F.2d 1339, 1343 n.5 (7th Cir. 1992)
(citation omitted).
Schaap has failed to offer the Court any objective facts that
would warrant an evidentiary hearing. Schaap did file an affidavit
stating that his “attorney informed [him] that, if [he] entered a
guilty plea, [his] sentence would be 120 months maximum, but was
more likely to be between three and four years, and perhaps as low
as eighteen months incarceration.

Based upon this promise, I

entered a guilty plea when I otherwise would have proceeded to

4

Schaap somehow thinks this Court’s comment during the sentencing
hearing that it did not “want to set a precedent saying that because you plead
pre-indictment that automatically gives you a 25 percent discount on the
guidelines” (DE # 44, p. 50) is proof that the Court did not understand its
discretion to vary from the Guidelines, but this simply is not true. The
record is replete with examples that this Court understood its discretion.
(DE #47, pp. 17 - 21, 35.)

21

trial.” (DE #57.) However, as discussed earlier in this decision,
the assertions made in this after-the-fact affidavit are directly
contradicted by the language in the plea agreement and Schaap’s
sworn statements made during the change of plea hearing.

“Self-

serving statements offered after the plea hearing generally fall in
the

face

of

contradictory

voluntary

statements

made

by

the

defendant during a plea hearing - the latter are presumed true.”
Mosley, 1994 WL 503016, at *3.

The Court has concluded that the

record and history of this case demonstrate that Schaap is not
entitled to relief. Therefore, an evidentiary hearing is not
warranted.

See Cooper v. United States, 378 F.3d 638, 641-42 (7th

Cir. 2004) (holding district court did not abuse its discretion in
denying evidentiary hearing where defendant was not entitled to
2255 relief, and given lack of additional evidence from defendant).

Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of
appealability
applicant.”

when

it

enters

a

final

order

adverse

to

the

A certificate of appealability may issue only if the

applicant “has made a substantial showing of the denial of a
constitutional right.”

28 U.S.C. § 2253(c)(2).

To make such a

showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion should

22

have been resolved in a different manner or that the issues
presented

were

further.”

adequate

to

deserve

encouragement

to

proceed

Slack v. McDaniel, 529 U.S. 473, 475 (U.S. 2000)

(internal quotation marks and citation omitted).
For the reasons set forth above, Schaap has not stated any
grounds for relief under section 2255.
for

a

determination

decision

debatable

that
or

reasonable

incorrect

encouragement to proceed further.

or

The Court finds no basis
jurists
that

would

the

find

issues

this

deserve

Therefore, a certificate of

appealability will not be issued.

CONCLUSION
For the reasons set forth above, the section 2255 motion (DE
#45) is DENIED AS MOOT.

The Amended Motion to Vacate, Correct, or

Set Aside Petitioner’s Sentence (DE #55) is DENIED.
request for an evidentiary hearing is also DENIED.
ORDERED to DISMISS this case WITH PREJUDICE.

Schaap’s

The Clerk is

Additionally, the

Court DECLINES to issue a certificate of appealability.

The Clerk

is FURTHER ORDERED to distribute a copy of this order to Jack Allen
Schaap, #12409-027, Ashland FCI, Inmate Mail/Parcels, P.O. Box
6001, Ashland, Kentucky 41105, or to such other more current
address that may be on file for the Petitioner.
DATED: August 26, 2014

/s/ RUDY LOZANO, Judge
United States District Court

23

24