United States District Court, N.D. Mississippi, Oxford Division
Sharion Aycock U.S. District Judge
matter comes before the court on the motion of Kirk
Pennington to vacate, set aside, or correct his 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 both on the
merits and as procedurally barred.
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 Section14 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
Pennington pled guilty to the charge of failure to register
as a sex offender, in violation of the Federal Sex Offender
Registration and Notification Act. See 18 U.S.C.
§ 2250(a). Based upon the factual basis for his guilty
plea, he was convicted for aggravated criminal sexual abuse
in 1994 and for “fondling” in 2008. On May 15,
2013, before Mr. Pennington was released from the Mississippi
Department of Corrections, he signed a Mississippi Convicted
Sex Offender's Duty to Register form indicating that he
would be residing on County Road 2359 in New Albany,
Mississippi. On June 9, 2013, Mr. Pennington was released
from the Mississippi Department of Corrections, but failed to
report to the Mississippi Department of Public Safety to
register as a sex offender. In addition, he did not report to
the Mississippi Department of Corrections Probation and
Parole Officer. On July 12, 2013, the U.S. Marshals Service
arrested Mr. Pennington in Memphis, Tennessee. When
questioned by a marshal, he stated that church members had
reneged on their promise to find him a place to live in New
Albany, Mississippi. He said he then traveled to Memphis,
Tennessee, where he stayed at a hotel, at a hospital, and
with friends, before he was apprehended. He told them that he
did not attempt to register as a sex offender in Tennessee.
weeks before Mr. Pennington's sentencing, the court
notified the parties that it was considering an upward
variance from the Guidelines range of 33 to 41 months, even
though the government had not moved for one. At sentencing,
the district court gave Mr. Pennington, the prosecutor, and
defense counsel an opportunity to speak. Defense counsel
emphasized that when Mr. Pennington was released from prison,
he had “no money, ” “no family, ”
“no friends, ” and “nowhere to go.”
Defense counsel also stressed that Mr. Pennington had a
history of mental illness, as well as a low level of
education. Counsel requested a sentence within the Guidelines
court recognized Mr. Pennington's “lack of
resources, ” but held that an upward variance was
appropriate based on the sentencing factors listed in 18
U.S.C. § 3553(a), including, inter alia,
“the nature and circumstances of the offense, ”
“the history and characteristics of the defendant,
” the need “to protect the public, ” and
the need “to afford adequate deterrence to criminal
conduct.” The court noted that Mr. Pennington had two
prior convictions for sex offenses, seven prior convictions
for failure to register as a sex offender, and numerous
probation violations. The court found that Mr.
Pennington's “conduct is the kind that puts the
community at risk, especially in this case, puts the children
at risk” and imposed a sentence of 84 months with 5
years' post-release supervision. Docs. 30, 35.
court also imposed several special conditions of supervised
release. Condition Eight, the one at issue in the present
case, prohibited Mr. Pennington from “engag[ing] in a
relationship or cohabit[ing] with any individual who has
children under the age of 18 unless approved by the probation
officer . . ..” In explaining its decision to impose
these conditions, the court noted first that Mr. Pennington
had been convicted of aggravated criminal sexual abuse that
occurred in 1994, when he was 20 years old. Given the
elements of that crime, the victim must have been between 13
and 15 years old. The court added, “of even greater
concern is the court's understanding of the Union County
conviction” for “fondling a child, ” when
Mr. Pennington was 33 years old. The court noted:
[a]ccording to the offen[s]e report in that case, No.
8MO-017, the victim in that case was a six-year-old child.
The circumstances was this child being a child of the woman
you were dating or engaged in some relationship with.
And for that reason, the court finds that these conditions
are not only merited but necessary in order to protect
society, particularly ...