United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
matter comes before the court on the motion of Joshua Brandon
Pillault 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 denied.
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 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
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.
Pillault raises four issues with various sub-points. He
alleges that he was denied effective assistance of counsel
and his rights under the 14th, 1st, and 4th Amendments were
violated. None of his arguments has merit.
Pillault first argues that his Sixth Amendment right to
effective assistance of counsel was violated, as well as his
right to trial by a fair and impartial jury of his peers,
because: (1) he had no attorney when his home was searched,
(2) his public defender failed to visit him, (3) he was
misled by his attorney, (4) he pled guilty based on his
attorney’s bad advice, (5) he is actually innocent, (6)
his accuser would not testify against him, and (7) his
attorney ineffectively cross-examined witnesses during
argues that his Fourteenth amendment right to due process was
violated because arresting officers coerced him into signing
away his right to counsel and be interviewed and because
defense counsel advised him to plead guilty, resulting in a
feeling that he had no defense, and no one was defending his
Mr. Pillault argues that his First Amendment right to freedom
of speech was violated because only his mother or parental
figure possessed the authority to censor his expressive
activities on the internet, and his threatened acts of
violence were protected under the First Amendment.
Mr. Pillault argues that his Fourth Amendment rights were
violated by the search of his home at the time of his arrest
– and because he was denied an interview for a
determination of the facts prior to his arrest and the search
of his home.
and Procedural Posture
October 4, 2012, Joshua Pillault, while playing the online
multiplayer game “RuneScape” and using the
display name “PaulGilbert (Merlan91),” threatened
to use firearms, pipe bombs, and Molotov cocktails to
recreate the Columbine massacre at Oxford High School in
Oxford, Mississippi (ROA.15-17). Pillault told other players
that he planned to commit suicide, but it would be a waste to
just kill himself, and that he had to kill other people first
(ROA.15). He stated that he needed to get “at least two
guns,” and “backup clips, mopolotov(sic)
cocktails, [and] pipe bombs” all of which he was going
to use to “level oxford hish (sic) school”
(ROA.16). Pillault further stated, “If I have anything
to say about it, that school is going to be gravel”
(Id.). He went on to state, “look for the last
name Pillault on the news 4-20-13….. because 4-20-13
is the anniversary of Columbine” (Id.).
Pillault explained that he was consumed by the Columbine
Massacre, stating multiple times, “We’ll never
forget: The Columbine Massacre….Ask me anything about
the massacre. I know it all” (ROA.17). Pillault
continued his threats, stating, “I can’t wait to
blow brains out of skulls,” and “the world is
going to know my wrath god dammit” (Id.).
same threats had been communicated to two of Pillault’s
former girlfriends. One of these girlfriends, Jane
was with him when he made these specific threats on
“RuneScape” (ROA.281). Doe testified that while
Pillault was intoxicated at the creation of these threats,
Pillault discussed and planned to carry out the threats when
both sober and intoxicated (ROA.281-282).
former girlfriend, Susan Roe, testified that Pillault had
researched at length how to make bombs (ROA.253). Roe drove
Pillault to a Home Depot store where he obtained a piece of
copper pipe, which he told Roe could be used to make a pipe
bomb (ROA.253). Later, Pillault told her that he tested the
pipe bomb and it worked. (ROA.254). Pillault had told Roe to
stay home from school on April 20, 2013, the anniversary of
Columbine (Roe testified she later discovered April
20th would be a Saturday) (Id.).
stated that Pillault was saving money to have someone buy him
a gun, and even went to Wal-Mart to look at guns (ROA.282).
Doe added that Pillault attempted to make Molotov cocktails
out of empty glass Sprite bottles, which did not work
properly when tested (ROA. 283).
Doe and Roe testified that Pillault had started making plans
outside of just drawings and talking. Roe testified that
Pillault created plans for the school shooting in a journal
(ROA.254). Doe also testified that Pillault devised multiple
plans to execute the school shooting. One plan was to break
through large plate glass windows at the high school
cafeteria, deploy either pipe bombs or smoke bombs, and
proceed through the school, spraying bullets as he went.
Another plan was to enter near the high school’s office
entrance, and try to begin the attack by shooting the school
principal in the head (ROA.282). Roe said she did not go to
the authorities because Pillault told her if she did, he
would kill her and her family (ROA.255).
Doe and Roe testified that Pillault was obsessed with
Columbine and admired the two shooters (ROA.251-252, 284).
Doe testified that Pillault told her that he believed that
school shootings were sometimes moral and necessary to
achieve justice (ROA.252).
October 4, 2012, the Oxford Police Department received two
phone calls alerting them to the threats against Oxford High
School made on the “RuneScape” game (ROA.12). The
first call came from a person in Virginia who had been
playing “RuneScape” at the time and saw the
threats being made. The second call came from Jagex Ltd, the
London based company that operates “RuneScape”
(Id.). Jagex provided account information and the
messages that contained the threats to the Oxford Police
Department (Id.). The Internet Protocol (IP) address
from which the threats originated, which was provided by
Jagex Ltd, was registered to a computer owned by Stacey
Pillault, Pillault’s mother, and which was located at a
residence on Combs St., in Oxford, Mississippi (ROA.12,15).
The user account for Internet service was also registered to
Stacey Pillault at the same address (ROA.15).
who had dropped out of high school and had over 20
disciplinary actions on his school record, was known by
Officer Harper Thomas, the Oxford High School resource
officer (ROA.473, 259). Officer Thomas told the Oxford Police
Department that he was concerned for the safety of the Oxford
High School students and that they should take these threats
seriously because Pillault was a person who had “very
impulsive tendencies, a lot of anger problems…a lot of
outbursts and just a lot of anger” (ROA.259-260). On
October 5, 2012, Officer Thomas was sent to find Pillault.
Extra security was put in place for the Oxford High School
football game that night (ROA.515).
October 8, 2012, the FBI obtained an arrest warrant for
Pillault (ROA.18). At the same time, a court authorized
search warrant was issued for any electronic device that
connected to the internet at his residence (ROA.35). Pillault
was arrested later that day at his residence (ROA.18).
Pillault admitted to police that he had been playing
“RuneScape” on October 4, 2012, under the display
name “PaulGilbert(merlan91)” (ROA.515). When the
police read the threats to him, Pillault admitted that he
probably wrote them but did not remember them because he was
drunk (ROA.104). Pillault also admitted to police that he had
attempted to download the controversial online game
“Super Columbine Massacre RPG,” in which players
assume the roles of the Columbine shooters and act out the
same time as the arrest, the FBI also executed the search and
seizure warrant (ROA.37). The FBI seized four laptop
computers and two cellular telephones from the residence,
including the computer Pillault used. (Id.).
According to the FBI computer examiner, who testified at the
sentencing hearing, on Pillault’s computer he found a
folder named “4chan” (ROA.515). The
“4chan” folder contained a folder named
“columbine” and a folder named
“serialkiller,” both of which contained pictures
related to the Columbine shooting and the two Columbine
shooters, along with other famous serial killers
(Id.). The “4chan” directory also
contained files with instructions on how to make “DIY
Thermite,” “Carbon Tet” pipe bombs, and how
to use a bicycle to ignite a blasting cap (Id.).
Pillault had also conducted the following Google searches
“pipe bomb”; “jolly-rogers cookbook”;
“how to make bomb explodes[sic]”;
“anarchistcookbook”; and “timothy
mcveigh” (ROA.516). Pillault also conducted the
following Youtube searches: “tennis ball ...