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Shakir v. United States

United States District Court, M.D. Tennessee, Nashville Division

November 12, 2019

JAMAL SHAKIR, Movant,
v.
UNITED STATES OF AMERICA, Respondent

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE.

         Jamal 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. 22-30, 32.)

         Because 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.)

         I.PROCEDURAL HISTORY

         On 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.)

         In 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.)

         As the 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 agreement were:

(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.)

         Meanwhile, 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.)

         On January 3, 2017, Shakir filed the pending Section 2255 motions collaterally challenging his sentences in both cases.

         II. WAIVER DOCTRINE

         Title 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 Cir. 2007).

         The 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 full here:

Waiver of Appellate Rights in No. 3:14-cr-00142
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 federal sentences.
Waiver of Appellate Rights in No. 3:98-00038
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).

         Much 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.

         III. ANALYSIS

         According to the government, the following six claims raised in Shakir's Section 2255 motions were waived in his plea agreement:

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. ...

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