United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE.
Shakir is a prisoner currently in the custody of the State of
California awaiting transfer to the Federal Bureau of Prisons
to serve ten consecutive life sentences plus twenty years for
his federal convictions in two separate cases. He filed two
pro se motions to vacate, set aside, or correct his federal
sentences in those cases pursuant to 28 U.S.C. § 2255.
(3:17-cv-00001, Doc. No. 1; 3:17-cv-00002, Doc. No. 1.)
Although the Court appointed counsel to represent Shakir in
both cases (3:17-cv-00001, Doc. No. 2; 3:17-cv-00002, Doc.
No. 4), he has elected to proceed on his original pro se
petitions and simply supplement them with exhibits.
(3:17-cv-00001, Doc. Nos. 19-39; 3:17-cv-00002, Doc. Nos.
both of Shakir's Section 2255 actions are impacted to
some degree by a single plea agreement he entered in 2016,
these cases-although not consolidated-are being briefed by
the parties and addressed by the Court in joint, simultaneous
filings in both cases to the extent appropriate. Due to the
scope and complexity of this litigation, the government has
proposed to address Shakir's claims in stages, with the
first stage being limited to determining whether certain
claims have been waived. The Court agrees with this approach.
The parties have thoroughly briefed the issue of waiver, and
that issue is ripe for determination. (3:17-cv-00001, Doc.
Nos. 46, 49, 53; 3:17-cv-00002, Doc. Nos. 40, 43, 45.)
March 24, 2008, in No. 3:98-cr-00038-11 (“1998
case”), a jury convicted Shakir of the following crimes
in violation of federal law: (Count 1) engaging in a
continuing criminal enterprise; (Count 2) conspiring to
distribute controlled substances and to intentionally kill or
cause the killing of five people in furtherance of a
continuing criminal enterprise; (Count 3) conspiring to use
and/or carry firearms during and in relation to drug
trafficking crimes and crimes of violence; (Counts 4, 9, 14,
31) conspiring to commit money laundering and three counts of
money laundering; (Counts 5, 13, 16) three counts of using
and/or carrying a firearm during and in relation to drug
trafficking crimes and/or crimes of violence; (Counts 7, 10,
18, 19, 37) five counts of first-degree murder in furtherance
of a continuing criminal enterprise or conspiracy to
distribute drugs; (Counts 8, 11, 22, 23, 29, 39) six counts
of using a firearm to cause death during and in relation to
drug trafficking crimes and/or crimes of violence; (Counts
12, 30) two counts of knowingly using minors in drug
trafficking; (Count 15) attempted robbery and extortion
affecting commerce through the use of actual and threatened
violence; (Count 17) using interstate commerce facility
(interstate telephone system) to commit a crime of violence
resulting in death; (Counts 20, 21, 38) three counts of
unlawful killing to prevent communication of criminal
activity to law enforcement; (Counts 24, 25, 26) three counts
of firing a weapon into a group of people with the intent to
intimidate, harass, injure, and maim, resulting in two deaths
and grave risk to another life; (Count 32) possession of
cocaine and cocaine base with intent to distribute; (Counts
40, 41) two counts of obstruction of justice. (3:17-cv-00001,
Doc. No. 41-8.) The government sought the death penalty for
eligible counts of conviction (3:98-cr-00038, Doc. No. 3239),
but the jury was unable to reach a unanimous decision
regarding a death sentence. (3:17-cv-00001, Doc. No. 41-9.)
The Court sentenced Shakir on December 7, 2009, to an
effective term of ten consecutive sentences of life in
prison, with fifteen additional life terms to run
concurrently. (3:17-cv-00001, Doc. No. 41-10.)
September 2014, while Shakir's appeal from the judgment
in the 1998 case was pending in the United States Court of
Appeals for the Sixth Circuit, Shakir and two members of his
family-Robyn Shakir and Catherine Lumas-were indicted in No.
3:14-cr-00142 (“2014 case”). The charged conduct
in this indictment involved crimes allegedly committed in
2008-09, during Shakir's incarceration for the 1998 case.
(3:17-cv-00001, Doc. No. 42-1.) Specifically, the grand jury
charged Shakir with: (Count 1) engaging in a continuing
criminal enterprise; (Count 2) attempting to escape from
custody; (Count 3) conspiring to commit robbery and extortion
affecting commerce through the use of actual and threatened
violence; and (Count 4) possessing a firearm in furtherance
of a crime of violence. (Id. at 1-7.) Shakir, Robyn
Shakir, and Lumas were charged in Count 5 with conspiring to
distribute controlled substances. (Id. at 7-8.)
result of negotiations between the government and
Shakir's attorneys dating back to at least 2012
(see 3:17-cv-00002, Doc. No. 22-1 at 5), the
government and Shakir ultimately entered a plea agreement
“intended to provide the global resolution of”
both the 1998 case and the 2014 case. (3:17-cv-00001, Doc.
No. 42-2 at 1.) The “basic terms” of the
(a) Defendant agrees to plead guilty to Count One in [the
2014 case]; (b) the parties agree the Court will impose a
sentence of 20 years' imprisonment, to be served
consecutively to all of his federal sentences in [the 1998
case]; (c) Defendant agrees to dismiss the pending appeal in
[the 1998 case] and to waive his right to seek further
appellate and/or post-conviction review, as set forth below;
(d) the government agrees to dismiss the forfeiture
allegation as well as Counts Two, Three, Four, and Five in
[the 2014 case]; and (e) the government agrees to dismiss all
charges in [the 2014 case] against Defendant's
co-defendants, Robyn Shakir and Catherine Lumas. Appellate
and other post-conviction waivers also apply as to both [the
2014 case] and [the 1998 case] as set forth below.
(3:17-cv-00001, Doc. No. 42-2 at 2.) On January 4, 2016, the
Court accepted Shakir's petition to plead guilty to Count
1 of the 2014 case, sentenced him to twenty years on that
conviction as agreed by the parties, and dismissed Counts 2-5
of the 2014 indictment. (3:14-cr-00142, Doc. No. 101;
3:17-cv-00001, Doc. Nos. 42-3, 42-4.)
Shakir's appeal in the 1998 case had been stayed by the
Sixth Circuit since February 25, 2015, on joint motion of the
parties for the purpose of continuing settlement
negotiations. (3:17-cv-00001, Doc. Nos. 43-4, 43-5.) On
January 4, 2016-the same day the Court accepted Shakir's
plea in the 2014 case-the Sixth Circuit granted Shakir's
motion to voluntarily dismiss his appeal in the 1998 case.
(3:17-cv-00001, Doc. Nos. 43-6, 43-7.)
January 3, 2017, Shakir filed the pending Section 2255
motions collaterally challenging his sentences in both cases.
28 U.S.C. § 2255(a) provides relief for federal inmates
who demonstrate that their “sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” But such collateral attacks are often waived
in plea agreements, and the Sixth Circuit has long held that
the knowing and voluntary waiver of a collateral attack is
enforceable, including plea agreement waivers of rights under
Section 2255. See, e.g., United States v.
Toth, 668 F.3d 374, 377 (6th Cir. 2012) (“It is
well settled that a defendant ‘may waive any right,
even a constitutional right, by means of a plea
agreement.'”); Davila v. United States,
258 F.3d 448, 451 (6th Cir. 2001) (same). However, a waiver
of a collateral attack may be unenforceable “in cases
where a defendant argues that his plea was not knowing or
voluntary, or was the product of ineffective assistance of
counsel” because “it would be entirely circular
for the government to argue that the defendant has waived his
right to an appeal or a collateral attack when the substance
of his claim challenges the very validity of the waiver
itself.” In re Acosta, 480 F.3d 421, 422 (6th
second paragraph of Shakir's plea agreement-under the
heading “Summary of the Agreement”-provided that
Shakir “agrees to dismiss the pending appeal in [the
1998 case] and to waive his right to seek further appellate
and/or post-conviction review, as set forth below.”
(3:17-cv-00001, Doc. No. 42-2 at 2.) The agreement later
separately provided for specific waivers in connection with
the 2014 case and the 1998 case, which the Court repeats in
Waiver of Appellate Rights in No.
21. Regarding the issue of guilt in No. 3:14-00142, Defendant
hereby waives all (i) rights to appeal any issue bearing on
the determination of whether he is guilty of the crime to
which he is agreeing to plead guilty; and (ii) trial rights
that might have been available if he exercised his right to
go to trial. Regarding sentencing, Defendant is aware that 18
U.S.C. § 3742 generally affords a defendant the right to
appeal the sentence imposed. Acknowledging this, Defendant
knowingly waives the right to appeal any sentence within or
below 240 months' imprisonment in No. 3:14-00142.
Defendant also knowingly waives the right to
challenge the sentence imposed in No. 3:14-00142 in any
collateral attack, including, but not limited to, a motion
brought pursuant to 28 U.S.C. § 2255 and/or § 2241,
and/or 18 U.S.C. § 3582(c). However, no waiver of the
right to appeal, or to challenge the adjudication of guilt or
the sentence imposed in any collateral attack, shall apply to
a claim of involuntariness, prosecutorial misconduct, or
ineffective assistance of counsel. Likewise, the
government waives the right to appeal any sentence within or
above 240 months' imprisonment, so long as the sentence
is imposed to run consecutive to all Defendant's other
Waiver of Appellate Rights in No.
22. Defendant is aware that he has a right to appeal his
convictions and sentence in 3:98-00038 and is aware that he
has exercised that right by prosecuting an appeal in No.
10-5019. Acknowledging this, Defendant knowingly waives the
right to appeal his conviction and sentence in No.
3:98-00038. Accordingly, Defendant agrees to voluntarily
dismiss with prejudice his pending appeal in No.
3:98-cr-00038/No. 10-5019, and further agrees not to seek to
reinstate that appeal.
23. Defendant also knowingly waives the right to
challenge his convictions and/or sentence imposed in No.
3:98-00038 in any collateral attack, including, but not
limited to, a motion brought pursuant to 28 U.S.C. §
2255 and/or § 2241, and/or 18 U.S.C.
§ 3582(c). However, no waiver of the right to challenge
the adjudication of guilt or sentence imposed in any
collateral attack shall apply to a claim of involuntariness,
prosecutorial misconduct, or ineffective assistance of
counsel, subject to the following exception: Defendant
knowingly waives the right to raise in any collateral attack
any claim of prosecutorial misconduct that was previously
raised in his direct appeal, No. 10-5019.
(Id. at 26-27) (emphasis added).
has been made of the complexity and sheer enormity of
Shakir's criminal prosecution, and deservedly so; the
Court's docket sheet alone for Shakir's 1998 case now
spans 185 pages. See United States v. Young, 657
F.3d 408, 411 (6th Cir. 2011) (referencing prosecution of
Shakir and his codefendants and stating that “[i]ts
scope and duration place it among the largest and most
complex federal prosecutions ever undertaken”).
Determination of the discrete issue currently before the
Court, however, turns on the relatively straightforward
question of whether the waivers quoted above are enforceable
in the pending collateral challenges.
to the government, the following six claims raised in
Shakir's Section 2255 motions were waived in his plea
1. 1998 case Claim 2 - the trial court erred in instructing
the jury ex parte during the first phase deliberations.
(3:17-cv-00001, Doc. No. 1 at 57; Doc. No. 46 at 29.)
2. 1998 case Claim 3 - the jury instructions were
contradictory, confusing, and duplicative, and diminished the
government's burden of proof. (Id., Doc. No. 1
at 61; Doc. No. 46 at 29.)
3. 1998 case Claim 4 - Shakir was shuttled between federal
and state custody prior to trial in violation of the
Interstate Agreement on Detainers. (Id., Doc. No. 1
at 73; Doc. No. 46 at 29.)
4. 1998 case Claim 5 - the prosecutor repeatedly committed
misconduct during trial. (Id., Doc. No. 1 at 82;
Doc. No. 46 at 29.)
5. 1998 case Claim 8 - a witness's incompetence
constitutes newly discovered evidence of actual innocence.
(Id., Doc. No. 1 at 108; Doc. No. 46 at 30.)
6. 2014 case Claim 2 - Shakir was shuttled between detention
centers in violation of the Interstate Agreement on
Detainers. (3:17-cv-00002, Doc. ...