Fomby v. United States of America
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 1/10/2022. (KAM)
2022 Jan-10 PM 01:09
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UNITED STATES OF AMERICA,
Civil Action Number
Malcom Muhammad Fomby was sentenced by this court to 100 months in
prison after he was convicted by a jury of possessing a firearm in violation of 18
U.S.C. § 922(g)(1). Doc. 1 at 1-2. Now before the court is Fomby’s motion to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See id. For the
reasons below, Fomby’s petition is due to be denied.
A grand jury charged Fomby with one count of violating § 922(g)(1), which
prohibits those with a felony conviction from knowingly possessing a firearm. Crim.
doc. 1 at 1-2. 1 Specifically, the indictment alleged that Fomby had been previously
Crim. doc. refers to the documents in Fomby’s underlying criminal case, United States v. Malcom
Muhammad Fomby, case no. 4:14-cr-00274-AKK-GMB.
convicted of four such crimes and then “knowingly possess[ed] . . . a Hi-Point .380
pistol.” Id. Fomby pleaded not guilty to this charge and proceeded to trial. Doc. 1
at 1-2. Fomby’s first trial ended in a mistrial, see crim. doc. 57, but a unanimous
jury convicted Fomby in the second trial, see crim. doc. 69. The court then sentenced
Fomby to 100 months in prison and 36 months of supervised release. Crim. doc. 79.
After the Eleventh Circuit affirmed the jury’s verdict, see crim. doc. 94, Fomby filed
a “Motion And/Or Request For New Trial And To Vacate Conviction And Sentence”
in his underlying criminal case, see crim. doc. 95. Fomby subsequently moved to
amend this initial post-judgment motion, see crim. doc. 96, and asked the court to
assign a civil case number to his motion, see crim. doc. 97. Fomby then filed the
instant § 2255 petition. See doc. 1.
Section 2255 allows a federal prisoner to file a motion in the sentencing court
“to vacate, set aside or correct the sentence” on the basis “that the sentence was
imposed in violation of the Constitution or laws of the United States.” 28 U.S.C.
§ 2255(a). If a petitioner’s challenge to his conviction is rejected on direct appeal,
he cannot re-litigate the issues raised in his appeal in a subsequent § 2255 petition.
United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). Moreover, if a
petitioner fails to raise an available challenge to a criminal conviction or sentence
on direct appeal, he is procedurally barred from raising it in a § 2255 proceeding.
Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). A petitioner can avoid
this procedural default bar if he can show either (1) cause for not raising the claim
on direct appeal and actual prejudice, or (2) actual innocence of the crime. Id. at
1234-35. In addition, claims of ineffective assistance of counsel are not subject to
Massaro v. United States, 538 U.S. 500, 503-04 (2003).
Ultimately, if it is clear from the motion and the relevant portions of the record that
the petitioner is not entitled to relief under § 2255, the court may summarily dismiss
the petition without ordering the United States to respond. See Rule 4, Rules
Governing Section 2255 Proceedings (2019). See also Wright v. United States, 624
F.2d 557, 558 (5th Cir.1980) 2 (affirming district court’s summary dismissal of §
2255 motion where record showed that petitioner was not entitled to relief).
In his petition, Fomby directs the court to the arguments he raised in several
post-judgment motions filed in his underlying criminal case. Doc. 1 at 4; see crim.
docs. 95, 96, 97. Fomby makes dozens of arguments for relief in these filings. The
court discerns the following categories of claims: (1) that Fomby is actually innocent
of the charges against him; (2) that his conviction was obtained in violation of his
rights to due process and a fair trial; and (3) that his counsel provided ineffective
Fifth Circuit decisions issued before October 1, 1981, are binding precedent within the Eleventh
Circuit. Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
assistance throughout his criminal proceedings. See crim. docs. 95, 96. The court
will address each category of argument in turn. 3
Fomby first seeks relief based on his alleged actual innocence. Crim. docs.
95-1 at 1-8. Fomby’s argument centers on his contention that the evidence at trial
was insufficient to support his conviction. Id. However, Fomby raised this argument
on appeal. See crim. doc. 94 at 3-6. The Eleventh Circuit rejected it, finding that
the “evidence presented at trial and reasonable inferences drawn from it support the
jury verdict.” Id. Fomby is thus foreclosed from re-litigating this issue here. Nyhuis,
211 F.3d at 1343.
Fomby also attacks his conviction based on several alleged errors, most of
which he claims violated his rights to due process and a fair trial. Specifically, as to
the Government, Fomby argues that: (1) his conviction was obtained by the knowing
use of perjured testimony, crim. doc. 95-1 at 10-18; (2) his conviction was obtained
by prosecutor vindictiveness and selective prosecution, id. at 41-48; (3) the
To the extent Fomby seeks a new trial under Federal Rule of Criminal Procedure 33, see crim.
doc. 95 at 1-2, his request is untimely. Absent newly discovered evidence, a Rule 33 motion must
be filed within 14 days of a guilty verdict. Fed. R. Cr. P. 33(b). Fomby filed his “Motion And/Or
Request For New Trial And To Vacate Conviction And Sentence” in August 2018, roughly three
years after the jury returned its guilty verdict. See crim. docs. 69, 95. Since Fomby has not
presented any new evidence discovered following the conclusion of trial, he is not entitled to relief
under Rule 33. United States v. Taohim, 817 F.3d 1215, 1222-23 (11th Cir. 2013). The court will
therefore only analyze Fomby’s arguments under the standards of § 2255.
prosecution committed several Batson violations, id. at 66-67; and (4) the
prosecution’s closing argument was so prejudicial that it denied Fomby a fair trial,
id. at 86-88. And as to the court, Fomby asserts that: (1) it issued an Allen charge
that coerced the jury into reaching a verdict, id. at 52-58; (2) it erred by admitting
inaccurate evidence, id. at 63-64; and (3) it failed to allow Fomby to present evidence
on his behalf, id. at 68-70. These are all issues related to the trial and were available
to Fomby to raise in his direct appeal. Fomby failed to do so, see crim. doc. 94, and
has not shown cause for this failure. He is therefore barred from bringing these
claims due to his procedural default. Lynn, 365 F.3d at 1234-35.
In the proposed amendment to his motion, Fomby also claims that “pursuant
to Rehaif v. United States, 139 S. Ct. 2191 (2019)[,] Fomby’s conviction violated
his due process right to a fair trial.” Crim. doc. 96 at 1-2. Again, however, Fomby
failed to raise this claim on direct appeal. See crim. doc. 94. And although Rehaif
clarified the government’s burden of proof in § 922(g) prosecutions, “Rehaif was not
‘truly novel’ in the sense necessary to excuse procedural default.” United States v.
Innocent, 977 F.3d 1077, 1084 (11th Cir. 2020). Therefore, Fomby’s fair trial- and
due process-related arguments are procedurally barred and do not form a valid basis
for vacatur of his sentence. Lynn, 365 F.3d at 1234-35.
Finally, Fomby makes several claims regarding the alleged inadequacy of his
counsel. To succeed on an ineffective assistance claim, a petitioner must show that
“(1) ‘counsel’s representation fell below an objective standard of reasonableness’
and (2) that such failure prejudiced him in that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” United States v. Pease, 240 F.3d 938, 941 (11th Cir. 2001) (quoting
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984)). “A habeas petitioner
claiming ineffective assistance of counsel must carry his burden on both Strickland
prongs, and a court need not address both prongs if the defendant has made an
insufficient showing on one.” Osley v. United States, 751 F.3d 1214, 1222 (11th
Cir. 2014). Moreover, on matters of trial strategy, a petitioner bears a particularly
heavy burden in proving ineffective assistance of counsel and must show that no
reasonable lawyer would have pursued the challenged strategy. Rogers v. Zant, 13
F.3d 384, 386 (11th Cir. 1994). Because conclusory allegations of ineffectiveness
are insufficient, Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992), “the
cases in which habeas petitioners can properly prevail on the ground of ineffective
assistance of counsel are few and far between.” Johnson v. Alabama, 256 F.3d 1156,
1176 (11th Cir. 2001).
Many of Fomby’s contentions misstate the record. For example, he argues
that counsel failed to: (1) object to a sentencing enhancement based on prior felony
charges, crim. doc. 95-1 at 29; (2) object to the admittance of evidence allegedly
obtained in violation of Fomby’s Fourth Amendment rights, id. at 49-50; (3) object
to a sentencing enhancement based on obstruction of justice, id. at 51; and (4)
challenge the particularity of the search warrant, id. at 72-73.
challenged the sufficiency of the search warrant and the admissibility of the resulting
evidence, see crim. docs 61, 89 at 3-6, and also objected to the sentencing
enhancements both orally and in writing, see crim. docs. 74, 91. And, even if Fomby
could show that his counsel’s performance in making these arguments was so
deficient as to meet Strickland’s performance prong, he has not shown that but for
his counsel’s performance, the result of his appeal would have been different.
Strickland, 466 U.S. at 687-88, 694.
Additionally, the vast majority of Fomby’s ineffective assistance claims either
(1) do not provide factual allegations to support the objections that Fomby argues
his counsel should have made, (2) repeat arguments that were already rejected on
direct appeal, or (3) challenge his counsel’s reasonable strategy at trial. See crim.
doc. 95-1 at 20, 30-34, 34-38, 39-40, 56-58, 59-60, 61-62, 65, 71-73, 74, 75-78, 7981, 82, 83-85. These claims do not provide a basis for relief under § 2255. Nyhuis,
211 F.3d at 1343; Rogers v. Zant, 13 F.3d at 386; Wilson, 962 F.2d at 998.
Fomby’s one remaining claim – that counsel provided ineffective assistance
due to an alleged conflict of interest, crim. doc. 95-1 at 21-28 – lacks merit.
Allegedly, his defense counsel previously worked for the local prosecutor in the
county where Fomby was arrested and did not pursue a vigorous defense because of
these prior relationships. Id. Because Fomby does not allege that counsel “actively
represented conflicting interests,” he is not entitled to a presumption of prejudice.
Strickland, 466 U.S. at 692. And Fomby’s allegations of deficient performance due
to this purported conflict largely mirror his arguments already considered and
rejected above. Fomby has thus failed to show that, but for his counsel’s alleged
conflict of interest, the result of the proceeding would have been different. Id. at
For these reasons, Fomby’s motion to vacate, set aside, or correct his sentence
under § 2255, doc. 1, is due to be denied in a separate order accompanying this
DONE the 10th day of January, 2022.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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