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Pennington v. United States

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

March 5, 2019



          Sharion Aycock U.S. District Judge

         This 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.

         Habeas Corpus Relief Under 28 U.S.C. § 2255

         The 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 codified:

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 corpus.


         Section 2255 Proceedings

         Section 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).

         The 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.

         After 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. 1998)).

         Ultimately, 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).

         Facts and Procedural Posture

         Kirk 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.

         Several 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 range.

         The 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.

         The 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 ...

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