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Byrd v. USA

United States District Court, N.D. Mississippi, Delta Division

October 10, 2018

ATHENA MARIE BYRD PETITIONER
v.
USA RESPONDENT

          MEMORANDUM OPINION

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE

         This 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.

         Facts and Procedural Posture

          On 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.

         The 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.

         As a 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.

         Aggrieved 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.

         Scope of §2255 Review

          There 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.

         A 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).

         I. Byrd's Allegations in her §2255 Motion do not Warrant Relief.

         The Johnson Decision

          Byrd 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 ...

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