United States District Court, N.D. Mississippi, Delta Division
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
matter comes before the court on the motions of Athena Marie
Byrd to vacate, set aside, or correct her sentence under 28
U.S.C.A. §2255 and for reduction of her sentence. ECF
docs. 128 and140. The government has responded to each
motion, and the matters are ripe for resolution.
and Procedural Posture
February 2, 2011, while in Arkansas, Petitioner Byrd, Dennis
Lee Andrews, and Patrick Hollowell, formulated a plan to
extort money from Byrd's boyfriend, Oliver Eugene
Anderson. ECF doc. 88, pp. 7-8. The three decided they would
pretend to threaten Byrd's life, telling Anderson that
she owed her co-conspirators $2, 000.00 for drugs.
Id. at 19. Byrd went to Anderson's home, asking
to borrow money. Id. Once inside, she let her
co-conspirators into the residence, who threatened the
couple, telling Anderson that Byrd owed them money.
Id. Byrd and Anderson were held at gunpoint while
the co-conspirators gathered guns, money, and other items.
Id. Anderson was told, if he did not comply, Byrd
would be harmed. Id. After taking money and
valuables from the home, Byrd and Dennis Lee Andrews put
Anderson into a car. Byrd drove them to the Isle of Capri
Casino in Coahoma County, Mississippi, while Andrews sat in
the back seat brandishing a handgun. Id. at 19-20.
Hollowell followed in another vehicle. Id.
plan was to force Anderson to cash a $2, 000.00 check and
give the money to the conspirators. Id. at 8. Once
inside the casino, Byrd and Andrews accompanied Anderson to
the cashier's window where he screamed that he was in
danger, alerting security and causing his kidnappers to flee.
Id. at 8-9.
result, Petitioner Byrd was indicted for conspiracy to kidnap
for ransom (Count I), kidnapping (Count II), and use of a
firearm in the commission of a violent crime (Count III). ECF
doc. 1. Byrd pleaded guilty to Counts I and II of the
indictment and was sentenced to serve a term of 60 months on
Count I and 175 months on Count II, to be served
consecutively. ECF docs. 53 and 74. Count III of the
indictment was dismissed on the motion of the government. ECF
doc. 74. Byrd's convictions and sentences were affirmed
by the Fifth Circuit on appeal. ECF doc. 100.
of this decision, Byrd filed a motion to vacate, set aside,
or correct her sentence pursuant to 28 U.S.C.A. §2255.
ECF doc. 128. Byrd argues that, her sentences for conspiracy
to kidnap and kidnapping should be shortened because her
crimes were not “crimes of violence” under the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). Id. Byrd also
alleges that her attorney provided ineffective assistance of
counsel. Id. Thereafter, Byrd filed a Motion to
reduce her sentence, arguing that the enhancement for
demanding a ransom under Guideline §2A4.1(b)(1) was
improperly applied in her case. ECF doc. 140. For the reasons
discussed herein, Byrd is not to the relief she seeks.
of §2255 Review
are four grounds upon which a federal prisoner may seek to
vacate, set aside, or correct his sentence: (1) that the
sentence was imposed in violation of the Constitution or laws
of the United States; (2) that the court was without
jurisdiction to impose the sentence; (3) that the sentence
exceeds the statutory maximum sentence; or (4) that the
sentence is “otherwise subject to collateral
attack.” 28 U.S.C. §2255; see United States v.
Cates, 952 F.2d 149, 151 (5thCir.1992). The
scope of relief under §2255 is the same as that of a
petition for a writ of habeas corpus.
Cates, 952 F.2d at 151.
defendant seeking relief under 28 U.S.C. §2255 may not
do so to raise issues that could have been raised on appeal.
United States v. Walling, 982 F.2d 447, 448-449
(10th Cir. 1992). A petitioner may not raise
constitutional issues for the first time on post-conviction
collateral review unless he shows cause for failing to raise
the issue on direct appeal and actual prejudice resulting
from the error. United States v. Pierce, 959 F.2d
1297, 1301 (5th Cir. 1992), cert. denied,
506 U.S. 1007 (1992); United States v. Shaid, 937
F.2d 228, 232 (5th Cir. 1991). The burden of
showing “cause, ” an “objective factor
external to the defense, ” rests with the petitioner.
McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991). No.
other types of errors may be raised on collateral review
unless the petitioner demonstrates that the error could not
have been raised on direct appeal, and if not corrected,
would result in a complete miscarriage of justice.
Pierce, 959 F.2d at 1301; Shaid, 937 F.2d
at 232. Further, if a claim is raised and considered on
direct appeal, a defendant may not raise the issue in a later
collateral attack. Moore v. United States, 598 F.2d
439, 441 (5th Cir. 1979).
Byrd's Allegations in her §2255 Motion do not
asserts that under Johnson, supra, her convictions
for kidnapping and conspiracy to kidnap are not crimes of
violence and, as such, her sentence should be shortened. In
Johnson, supra, the Supreme Court considered the
constitutionality of the “residual clause” of the
Armed Career Criminal Act. The A.C.C.A. provides for the
enhanced sentencing of a convicted felon who “has three
previous convictions … for a violent felony or a
serious drug offense, or both….” 18 U.S.C.A.
§924(e)(1). The A.C.C.A. further defines a
“violent felony” as a crime punishable by more
than one year that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the ...