OREGON U.S.  DISTRICT COURT

 

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

UNITED STATES OF AMERICA (U.S.A.)

            Plaintiff,
v.                                                                                 Case No. 3:17-CR-00435-JO-1

JODY TREMAYNE WAFER

            Defendant,

 

REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S § 2255 MOTION

I

Plaintiff willfully lies when “ineffective assistance of counsel” is to be raised. “An ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” “A § 2255 motion is preferable to direct appeal for deciding an ineffective-assistance claim.” Massaro  v. United States, 538 U.S. 500. (Also cited by plaintiff. ECF 264, Pg. 3-4)

II

Plaintiff violated the court order to respond. Plaintiff failed to address the allegation of Ground One of the § 2255 MOTION as required by Rule 5 (b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. “Contents. The answer must address the allegations in the motion.”

Ground One: Mr. Wafer is in custody in violation of Amendments IV and V of the Constitution of the United States. He is being deprived of his liberty, without compelling reasons for Congress to proscribe marijuana, therefore without due process of law.

1.

U.S.A. willfully lied about the claim in Ground One saying defendant claims marijuana is a constitutional right. Defendant had already acknowledged that marijuana is not a fundamental right in the facts supporting Ground One. This § 2255 Motion to vacate is seeking habeas relief for the deprivation of liberty, incarceration, by unreasonable and unconstitutional laws proscribing marijuana as a dangerous controlled substance.
                                                                           III

Amendment V No person shall . . . be deprived of life, liberty, or property, without due process of law;

Nowhere in the plaintiff’s response is the word “liberty”. U.S.A. willfully denies the existence of the constitutional right of liberty, freedom from physical restraint “The rights of the individual in respect of his liberty may at times . . . be subjected to such restraint, to be enforced by reasonable regulation, [not rational] as safety of the general public may demand. Jacobson v. Massachusetts, 197U.S. 11, 29 (1905)

“As used in the due process clause, ‘liberty’ most likely refers to . . . ‘removing one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.’” Blackstone, Commentaries on the laws of England 130(1769).” Justice Thomas dissenting in Obergefell v. Hodges, 14-556 section II A1.

Defendant claims due process of law doesn’t allow Congress to pass criminal laws without compelling reasons to deprive him of his constitutional right of liberty. Criminal laws are an Article III case and controversy. [The] case and controversy limitation, . . . [is an] . . . American institution of judicial review . . . for the preservation of individual rights.  Rescue
Army v. Municipal Court
 331 U.S. 549, 572 (1947).  ''The province of the court is, solely, to
                                                                           2.

decide on the rights of individuals, . . . '' Marbury v. Madison, 5 U.S. 137, 170 (1803).

The operation and effect of enforcing the marijuana laws by government police power was deprivation of defendant’s explicit constitutional rights of liberty and property creating standing. Due process of law requires laws that deprive constitutional rights to be reviewed by strict scrutiny. This requires the government to provide compelling reasons, based on fact, for criminalizing marijuana as a dangerous controlled substance.

“We recognize that the constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a particular article is without support in reason because the article, although within the prohibited class, is so different from others of the class as to be without the reason for the prohibition.” United States v. Caroline products Co., 304 U.S.144 153-54(1938)

IV

Amendment IV: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable [not irrational] searches and seizures, shall not be violated; . . .

“Police power. . . is subordinate to constitutional limitations . . . It is the governmental power of self-protection and permits reasonable [not rational] regulation of rights and property in particulars essential to the preservation of the community from injury. Panhandle Eastern Pipeline Co. v. Highway Comm'n, 294 U.S. 613, 622 (1935).

            “In the absence of compelling justification, the police power does not extend so far as to permit the Government to protect an individual against himself and that the concern for public
                                                                            3.  

health and safety is relevant only insofar as the action may threaten the wellbeing of others.”
United States v. Kiffer 477 F2.d 349, 354 (1973).

            “The validity of regulatory measures are challenged on the ground that they transgress the Constitution, and thereupon it becomes the duty of the court, in light of the facts in the case, to determine whether the regulation is reasonable and valid or essentially unreasonable, arbitrary and void.” Norfolk & W.R. Co v. Public Service Commission of West Virginia 265 U.S. 70,                                    74 (1924)

            “[C]riminal statutes be subjected to the most rigid scrutiny . . . and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible [government] objective.”   Loving v. Virginia, 388 U.S. 1, 11 (1967)

            “It is only where rights. . .  are being . . . affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power.” State of Texas v. Interstate Commerce Commission. 258 U.S. 158, 162 (1922). “One's right to life, liberty, and property  . . . may not be submitted to vote; they depend on the outcome of no elections. West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 1943. “Such rights . . . do not vanish simply because the power of the state is arrayed against them. Nor are they enjoyed in subjection to mere legislative findings.” Nebbia v. New York, 291 U.S. 502, 548; (1934).

V

The “prevailing norms of the legal community” is that marijuana is not a fundamental
                                                                             4.

 

right. Marijuana laws are rational, a political question, a political crime. This is a result of cases
wrongly presented because of the political (racist/nazi) “prevailing norms of the legal community” demeaning liberty. No counsel for a marijuana defendant has claimed the operation and effect of police power was the deprivation of liberty and property without due process of law. 
           The operation and effect of police power is not to be challenge. The “prevailing norms of the legal community” is denying these criminal laws are an Article III case and controversy. Denying that marijuana is property, Denying liberty means freedom from physical restraint. The “prevailing norms of the legal community” the criminal justice system, is to save face. To lie and willfully deprive constitutional rights of liberty and property under the color of law.

CONCLUSION

United Stated of America is telling the court to lie that this 2255 motion is about claiming marijuana is a constitutional right. The Plaintiff had the opportunity to respond to the allegation of Ground One of the § 2255 motion to vacate. The U.S.A. has failed to do so. An independent, impartial court would grant relief requested in Defendant’s § 2255 motion to vacate conviction.

The court does not need an evidentiary hearing to prove the original meaning of the constitutional right of liberty is freedom from physical restraint.

Dated:
Respectfully,                                                 Jody Tremayne Wafer
                                                                        #80606-065
                                                                        FCI Yazoo City Medium
                                                                        P.O. BOX 5000
                                                                        Yazoo City, MS 39194

                                                                                     5.

 

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

UNITED STATES OF AMERICA

            Plaintiff,
v.                                                                                 Case No. 3:17-CR-00435-JO-1

JODY TREMAYNE WAFER

            Defendant,

CERTIFICATE OF SERVICE

 

I hereby certify I have placed a copy of REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S § 2255 MOTION in the prison mailing system on                                            First-Class Mail, postage prepaid, address to:

AMY E. POTTER
Assistant United States Attorney
405 E. 8th Avenue, Suite 2400
Eugene, OR 97401 

Dated:

 

Jody Tremayne Wafer
 #80606-065
FCI Yazoo City Medium
P.O. BOX 5000
Yazoo City, MS 39194

 

 

 

 

 

 

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