United States District Court, N.D. Mississippi, Greenville Division
matter comes before the court on the motion of Kathy June
Shadburn to vacate, set aside, or correct her sentence under
28 U.S.C. § 2255. The government has responded to the
motion, and the matter is ripe for resolution. For the
reasons set forth below, the instant motion to vacate, set
aside, or correct sentence will be dismissed, as the Movant
waived her right to seek post-conviction collateral relief in
her plea agreement, and she procedurally defaulted the sole
claim raised in the instant motion.
Corpus Relief Under 28 U.S.C. § 2255
writ of habeas corpus, a challenge to the legal
authority under which a person may be detained, is ancient.
Duker, The English Origins of the Writ of Habeas Corpus: A
Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass,
Historical Aspects of Habeas Corpus, 9 St. John's L.Rev.
55 (1934). It is "perhaps the most important writ known
to the constitutional law of England," Secretary of
State for Home Affairs v. O'Brien, A.C. 603, 609
(1923), and it is equally significant in the United States.
Article I, § 9, of the Constitution ensures that the
right of the writ of habeas corpus shall not be
suspended, except when, in the case of rebellion or invasion,
public safety may require it. Habeas Corpus, 20 Fed.
Prac. & Proc. Deskbook § 56. Its use by the federal
courts was authorized in Sectionl4 of the Judiciary Act of
1789. Habeas corpus principles developed over time
in both English and American common law have since been
The statutory provisions on habeas corpus appear as
sections 2241 to 2255 of the 1948 Judicial Code. The
recodification of that year set out important procedural
limitations and additional procedural changes were added in
1966. The scope of the writ, insofar as the statutory
language is concerned, remained essentially the same,
however, until 1996, when Congress enacted the Antiterrorism
and Effective Death Penalty Act, placing severe restrictions
on the issuance of the writ for state prisoners and setting
out special, new habeas corpus procedures for
capital cases. The changes made by the 1996 legislation are
the end product of decades of debate about habeas
28 U.S.C. § 2255 permits an inmate serving a sentence
after conviction of a federal crime "to move the court
which imposed the sentence to vacate, set aside or correct
the sentence." 28 U.S.C. § 2255(a). As with the
writ of habeas corpus, see 28 U.S.C. §§
2241, 2254, a § 2255 motion sets forth only four bases
on which a motion may be made: (1) the sentence was imposed
in violation of the Constitution or laws of the United
States; (2) the court was without jurisdiction to impose the
sentence; (3) the sentence exceeds the statutory maximum
sentence; or (4) the sentence is "otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). Thus, a
prisoner must claim either a constitutional violation or want
of subject matter jurisdiction to invoke 28 U.S.C. §
2255. In the absence of constitutional or jurisdictional
defects, a federal prisoner may invoke § 2255 only if
the error constitutes "a fundamental defect which
inherently results in a complete miscarriage of
justice." United States v. Addonizio, 442 U.S.
178, 185 (1979).
district court must first conduct a preliminary review of a
section 2255 motion, and "[i]f it plainly appears from
the motion, any attached exhibits, and the record of the
prior proceeding that the moving party is not entitled to
relief, the judge must dismiss the motion." Rules
Governing Section 2255 Proceedings, Rule 4(b). If the motion
raises a non-frivolous claim to relief, the court must order
the Government to file a response or to take other
appropriate action. Id. The judge may then require
the parties to expand the record as necessary and, if good
cause is shown, authorize limited discovery. Rules
Governing Section 2255 Proceedings, Rules 6-7.
reviewing the government's answer, any transcripts and
records of prior proceedings, and any supplementary materials
submitted by the parties, the court must decide whether an
evidentiary hearing is warranted. Rules Governing Section
2255 Proceedings, Rule 8. Under the statute, an
evidentiary hearing must be held unless "the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief." 28 U.S.C. §
2255(b). However, the court need not hold an evidentiary
hearing if the prisoner fails to produce "independent
indicia of the likely merit of [his] allegations."
United States v. Edwards, 442 F.3d 258, 264
(5th Cir. 2006) (quoting United States v.
Cervantes, 132 F.3d 1106, 1110 (5th Cir.
the petitioner bears the burden of establishing his claims of
error by a preponderance of the evidence. See Wright v.
United States, 624 F.2d 557, 558 (5th Cir.
1980). For certain "structural" errors, relief
follows automatically once the error is proved. See
Burgess v. Dretke, 350 F.3d 461, 472 (5th
Cir. 2003). For other errors at the trial court level, the
court may grant relief only if the error "had
substantial and injurious effect or influence" in
determining the outcome of the case. Brecht v.
Abrahmson, 507 U.S. 619, 637 (1993); see also United
States v. Chavez, 193 F.3d 375, 379 (5th Cir.
1999) (applying Brecht's harmless error standard
in a § 2255 proceeding). If the court finds that the
prisoner is entitled to relief, it "shall vacate and set
the judgment aside and shall discharge the prisoner or
resentence him or grant a new trial or correct the sentence
as may appear appropriate." 28 U.S.C. § 2255(b).
and Procedural Posture
October 2014, a Grand Jury returned an Indictment charging
Kathy June Shadburn, along with many other defendants,
regarding the criminal activities of the Aryan Brotherhood of
Mississippi ("ABM"), a violent, race-based prison
gang. The Indictment charged Ms. Shadburn with Conspiracy to
Participate in Racketeering Activity in violation of 18
U.S.C. § 1962(d) and Conspiracy to Possess with Intent
to Distribute Methamphetamine in violation of 18 U.S.C.
§ 846. (See Superseding Indictment, Doc. 203).
The charges against Ms. Shadburn arose from her involvement
with Perry Mask, one of the primary leaders of the ABM, who
was serving a life sentence for murder at the time of the
April of 2015, the Grand Jury returned a Superseding
Indictment against Ms. Shadburn and sixteen co-defendants.
The charges against her remained unchanged in the Superseding
Indictment. On September 14, 2015, she changed her plea to
guilty on Count One of the original Indictment and explicitly
waived her right to collaterally attack her conviction and
sentence under 28 U.S.C. §2255. (See Plea
Agreement, ¶ 5; Attached Exhibit "A" of the
Government's response). With two prior drug trafficking
felonies on her record, Ms. Shadburn qualified as a career
offender under the Sentencing Guidelines, and her
Pre-Sentence Investigation Report ("PSR") provided
for a guideline imprisonment range of 262 months to 327
months with a total offense level of 34 and a criminal
history category of VI. (PSR, ¶ 97).
December 17, 2015, the court sentenced Shadburn to 96 months
imprisonment followed by two years of supervised release. She
did not pursue a direct appeal of her conviction or sentence.
She then filed a motion for credit for 45 days served at the
Federal Medical Center Carswell for a mental capacity
evaluation (Doc. 451), which the court denied (Doc. 484).
Shadburn then filed the present motion under 28 U.S.C. §
2255 to Vacate, Set Aside or Correct Sentence. The sole claim
she raised is that she played "a minor role and is
entitled to injunction." (See § 2255
Petition, Doc. 614, p. 5). She claims that she did not pursue
a direct appeal on this issue because the "Amendment
just became available." (See § 2255