Muhammad v. USA
ORDER: The petitioner's motion to vacate, set aside, or correct a sentence under 28 U.S.C § 2255 (Doc. No. 1 ) is hereby DENIED for the reasons set forth in the attached ruling. Signed by Judge Alvin W. Thompson on 9/11/17. (Mata, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,
Civ. No. 3:14CV1384(AWT)
RULING ON MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE
Petitioner Lut Muhammad (“Muhammad”), proceeding pro se, has
moved pursuant to 28 U.S.C. § 2255 to vacate, set aside or
correct his sentence.
He makes two arguments.
First, he argues
that his 240-month sentence was unconstitutional because the
grand jury never indicted him based on the new cocaine base
quantities enacted as part of the Fair Sentencing Act (“FSA”).
Second, he argues that his counsel was ineffective for not
raising this claim prior to sentencing.
For the reasons set
forth below, the motion is being denied without a hearing.
FACTUAL AND PROCEDURAL BACKGROUND
On December 2, 2009, a federal grand jury returned an
Indictment against Muhammad and sixteen others charging various
The defendant was arrested on December 3,
2009. In February 2010, after some of the defendants had pleaded
guilty to the charges in the original Indictment, the grand jury
returned a Superseding Indictment against the defendant, the
remaining co-defendants, and two new co-defendants.
2010, the grand jury returned a twelve-count Second Superseding
Indictment against the defendant and four remaining codefendants.
The Second Superseding Indictment charged the
defendant with one count of conspiracy to possess with the
intent to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846; with
six counts of possession with intent to distribute or
distribution of 5 grams or more of cocaine base, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); and with four counts of
distribution of cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C).
Subsequently, the government filed a second offender
notice as to the defendant, listing five separate prior felony
drug convictions as potential qualifiers for enhanced penalties
under 21 U.S.C. § 841(b).
On September 7, 2010, the defendant
pleaded guilty to each count against him in the Second
At the time of the guilty plea, the
On December 2, 2009, the defendant and eight other defendants were also
indicted in a fourteen-count indictment in a related case, United States v.
Muhammad, et al., 3:09cr265(JBA). The charges against the defendant in that
case were dismissed on July 22, 2010.
defendant entered into a written plea agreement.
did not stipulate to quantity as part of the plea agreement.
Other than the government’s agreement to recommend a three-level
reduction for acceptance of responsibility, the parties did not
enter into a Guidelines stipulation.
The Pre-Sentence Report (“PSR”) found that the defendant
had 20 criminal history points and thus was in Criminal History
The PSR also found that the defendant’s conduct
involved between 2.8 and 8.4 kilograms of cocaine base, and
consequently, that his base offense level w a s 36.
offense level was 33 after a three level reduction for
acceptance of responsibility.
At a total offense level of 33
and Criminal History Category VI, the advisory guideline
incarceration range was 235 to 293 months.
The defendant objected to the drug quantity, and the
court held an evidentiary hearing to determine the quantity of
crack cocaine attributable to the defendant.
At the conclusion
of the evidentiary hearing, the government argued that the
defendant was responsible for distributing in excess of 2.8
kilograms of crack cocaine, and the defendant contended that the
quantity was 2.702 kilograms.
At sentencing the court confirmed, and the parties agreed,
that the new FSA penalties would apply so that, based on the
defendant’s most serious offense of conviction, i.e. conspiracy
to distribute 50 grams or more of crack cocaine, and the filing
of the second offender notice, he faced a mandatory minimum
penalty of 10 years under 21 U.S.C. § 841(b)(1)(B), instead of
20 years under 21 U.S.C. § 841(b)(1)(A).
The court also
overruled the defendant’s objection to the second offender
In addition, the court found, with respect to quantity,
that the government had established by a preponderance of the
evidence that 2.8 kilograms of cocaine base should be attributed
to the defendant.
The court imposed a sentence of 240 months
of incarceration and eight years of supervised release.
The defendant appealed, challenging his sentence on two
First, he argued that the court erred in finding that
the quantity of crack cocaine attributable to the defendant was
between 2.8 and 8.4 kilograms.
Second, he argued that the
quantity finding should have been made by a jury, not the
court, and that the fact that no grand jury or jury had made
the necessary quantity findings under the newly amended crack
cocaine guidelines under the FSA meant that the court could not
apply the statutory mandatory minimum penalties under 21 U.S.C.
The defendant’s arguments were rejected in an
unpublished summary order.
See United States v. Muhammad, 520
Fed. Appx. 31 (2d Cir. 2013).
Federal prisoners can challenge a criminal sentence
pursuant to 28 U.S.C. § 2255 only in limited circumstances.
[A] “collateral attack on a final judgment in a criminal
case is generally available under § 2255 only for a
constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that
constitutes ‘a fundamental defect which inherently results
in complete miscarriage of justice.’”
Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996)
(citing United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).
[N]ot “ every asserted error of law can be raised on a §
See Davis v. United States, 417 U.S. 333,
346 (1974) . . . . The grounds provided in section 2255
for collateral attack on a final judgment in a federal
criminal case are narrowly limited, and it has “long been
settled law that an error that may justify reversal on
direct appeal will not necessarily support a collateral
attack on a final judgment.” United States v. Addonizio,
442 U.S. 178, 184 (1979) . . . .”
Napoli v. United States, 32 F.3d 31, 35 (2d Cir. 1994), amended
on reh’g on other grounds, 45 F.3d 680 (2d Cir. 1995).
Constitutional errors will not be corrected through a writ of
habeas corpus unless they have had a “substantial and injurious
effect,” that is, unless they have resulted in “actual
Brecht v. Abrahamson, 507 U.S. 619, 623, 637-38
(1993); see also Underwood v. United States, 166 F.3d 84, 87 (2d
Cir. 1999) (applying Brecht to § 2255 motions).
“A § 2255 motion may not relitigate issues that were
raised and considered on direct appeal.”
United States v.
Perez, 129 F.3d 255, 260 (2d Cir. 1997) (declined to review
plea withdrawal claim that had already been argued on appeal).
This “so-called mandate rule bars re-litigation of issues
already decided on direct appeal.”
Yick Man Mui v. United
States, 614 F.3d 50, 54 (2d Cir. 2010)(citation omitted).
mandate rule prevents re-litigation in the district court not
only of matters expressly decided by the appellate court, but
also precludes re-litigation of issues impliedly resolved by the
appellate court’s mandate.”
Yick Man Mui, 614 F.3d at 53.
“[F]ailure to raise a claim on direct appeal is itself a
default of normal appellate procedure, which a defendant can
overcome only by showing cause and prejudice.”
United States, 968 F.2d 187, 190 (2d Cir. 1992).
This rule is
applied because of concerns about “finality, accuracy and the
integrity of prior proceedings, as well as concerns of judicial
“[C]ollateral review of convictions ‘places a
heavy burden on scarce judicial resources, may give litigants
incentives to withhold claims for manipulative purposes, and may
create disincentives to present claims when evidence is
fresh.’” Id. (quoting Keeney v. Tamayo Reyes, 504 U.S. 1, 7
To obtain review of procedurally defaulted claims, the
petitioner must show both “cause” for the default of each claim
and “prejudice” that resulted from the alleged violation. See
Ciak v. United States, 59 F.3d 296, 301, 302 (2d Cir. 1995),
abrogated on other grounds by Mickens v. Taylor, 535 U.S. 162,
172 n.3 (2002) (quoting Wainwright v. Sykes, 433 U.S. 72, 87
“Where the petitioner--whether a state or federal
prisoner--failed properly to raise his claim on direct review,
the writ is available only if the petitioner establishes ‘cause’
for the waiver and shows ‘actual prejudice from the alleged . .
Reed v. Farley, 512 U.S. 339, 354 (1994)
(quoting Wainwright, 433 U.S. at 84).
“‘Cause’ under the cause and prejudice test must be
something external to the petitioner, something that cannot
fairly be attributed to him”.
Coleman v. Thompson, 501 U.S.
722, 753 (1991) (emphasis in original).
“[T]he existence of
cause for a procedural default must ordinarily turn on whether
the prisoner can show that some objective factor external to the
defense impeded counsel’s efforts to comply with the . . .
Id. (quotation marks omitted) (quoting Murray
v. Carrier, 477 U.S. 478, 488 (1986)).
To demonstrate prejudice, a petitioner must convince the
court “that ‘there is a reasonable probability’ that the result
of the trial would have been different” if not for the alleged
Strickler v. Greene, 527 U.S. 263, 289 (1999) (applying
the cause-and-prejudice standard to a state procedural default
in a § 2254 habeas case). The question is whether, despite the
error, “[the petitioner] received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.”
Id. at 289-
90 (internal quotation marks omitted) (quoting Kyles v. Whitley,
514 U.S. 419, 434 (1995)).
Section 2255 provides that a district court should grant a
hearing “[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
28 U.S.C. § 2255(b).
However, district courts may
“exercise their common sense”, Machibroda v. United States, 368
U.S. 487, 495 (1962), and may draw upon personal knowledge and
recollection of the case, see Blackledge v. Allison, 431 U.S.
63, 74 n.4 (1997); United States v. Aiello, 900 F.2d 528, 534
(2d Cir. 1990).
Thus, a § 2255 motion may be dismissed without
a hearing if, after a review of the record, the court determines
that the allegations are insufficient as a matter of law.
The government argues that the instant habeas petition was
not timely filed.
The court agrees and, moreover, concludes
that assuming arguendo that the petition was timely filed, the
petitioner’s two arguments fail for additional reasons.
Under 28 U.S.C. § 2255,
A 1-year period of limitation shall apply to a
motion under this section. The limitation period shall
run from the latest of - (1) the date on which the
judgment of conviction becomes final; (2) the date on
which the impediment to making a motion created by
governmental action in violation of the Constitution
or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action; (3) the date on which the right
asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or (4) the date on which
the facts supporting the claim or claims presented
could have been discovered through the exercise of due
Here, the sentence was affirmed by summary order on April
13, 2013 and the mandate was issued on May 21, 2013.
petitioner did not file his § 2255 motion until September 22,
2014, more than a year after the judgment of conviction became
The petitioner claims that he petitioned the United
States Supreme Court for a writ of certiorari, but there is no
indication on the docket that any such writ was ever docketed or
While the Supreme Court’s docket reflects that co-
defendant Okeiba Sadio petitioned for a writ of certiorari on
May 23, 2013 and the Court denied the petition (See Sadio v.
United States, Docket No. 12-10525, 134 S. Ct. 128 (Oct. 7,
2013)), there is no docket entry or record indicating that
Muhammad likewise filed a petition.
Therefore, the petition is untimely under 28 U.S.C. §
B. Constitutionality of the Sentence
The petitioner’s challenge to his sentence is barred
under the mandate rule because he raised an almost identical
claim on appeal.
In support of his petition he argues:
[B]ecause of the terms of the plea agreement, petitioner
pled guilty to drug quantities and mandatory minimum
sentences that were no longer applicable because of the
enactment of the Fair Sentencing Act.
See EXHIBIT C
(Change of Plea Transcript pg. 72-73).
On January 10,
2012, petitioner appeared before Judge Alvin Thompson for
At sentencing the court violated petitioners
Fifth Amendment Right by applying the “Fair Sentencing Act”
amended statutory penalty under 21 U.S.C. § 841(b)(1)
(B)(iii). The amended version of 841(b)(1)(B)(iii), sets a
threshold of 28 grams of crack cocaine. Petitioners Fifth
Amendment right was violated on January 10, 2012, because
petitioner was sentenced to a 240 month sentence on count
one of the Second Superseding Indictment for a violation of
841(b)(1)(B)(iii), when there was no indictment from a
Grand Jury for a violation of 21 U.S.C. § 841(b)(1)(B)
(iii). This is a fact, because after August 3, 2010, the
date the “Fair Sentencing Act”, took effect, the government
did not seek a Third Superseding Indictment from a Grand
Jury, which would have alleged the proper “Fair Sentencing
Act” quantity of 28 grams. The 240 month sentence that was
imposed by the District Court on count one pursuant to 841
(b)(1)(B)(iii), was imposed by the District Court in
violation of the Fifth Amendment of the Constitution
because there is no indictment from a Grand Jury for
841(b)(1)(B)(iii) . . . .
Mot. to Vacate, Set Aside, or Correct Sentence (“Doc. No. 1”)
But on direct appeal the defendant argued that “[t]he
district court erred procedurally in sentencing [him] based
upon drug quantities neither voluntarily pleaded nor proved to
a jury.” Appeal Br. at 13.
He claimed that “[d]rug
quantities specified under 21 U.S.C. § 841 are elements that
must be pleaded or proved to a jury where the quantity of the
contraband is used to support a conviction on an aggravated
drug offense.” Appeal Br. at 13-14.
He also argued that the
court erred by applying the FSA’s amended statutory penalties
under 21 U.S.C. § 841(b)(1)(B) instead of those under §
See Appeal Br. at 16-17.
His appellate brief
Mr. Muhammad stipulated in the Plea Agreement
that the conspiracy involved 50 grams or more of
cocaine base. . . . Yet, after the passage of the
Fair Sentencing Act, the statutory provision at
issue required 280 grams or more of cocaine base to
841(b)(1)(A)(iii).2 As the Government candidly admits
in its Sentencing Memorandum, Mr. Muhammad “was not
charged with, nor did he plead guilty to, an offense
carrying a quantity threshold in excess of 280 grams
of crack cocaine.” Therefore, the statutory provision
841(b)(1)(A), varies from the statutory provision
underlying the Judgment entered on Count I, which
refers to 21 U.S.C. § 841(b)(1)(B). . . .
Not only did Mr. Muhammad enter into the Plea
Agreement under an inapplicable statutory provision,
21 U.S.C. § 841(b)(1)(A), he did so under the
threat of the draconian penalties provided by its
terms prior to amendment by the Fair Sentencing Act.
The Plea Agreement states that Mr. Muhammad would be
subject to a mandatory minimum sentence of 20 years
of incarceration under § 841(b)(1)(A). . . . Yet, as
the Government concedes in its Sentencing Memorandum,
that mandatory minimum sentence did not apply after
the amendments to § 841(b)(1)(A). . . .
Instead of correcting the flaws in the Plea
Agreement or renegotiating its terms in light of the
more lenient statutory scheme, the Government chose
to proceed under § 841(b)(1)(B) instead of §
841(b)(1)(A). See id. It appears that the Government
assumed that the 50 grams to which Mr. Muhammad pled
guilty would satisfy the new 28-gram threshold under
This is correct as a matter of arithmetic.
However, Mr. Muhammad pled guilty under the wrong
statutory provisions and under the menace of a
mandatory minimum sentence that Congress had found
“unfairly long.” Dorsey, 132 S. Ct. at 2333. It is
safe to assume that Mr. Muhammad stood at a decided
disadvantage during the plea negotiations because
the Government mistakenly informed him that his
baseline sentence could not vary from the 20-year
nevertheless relied upon the factual basis set forth
in the Plea Agreement to convict Mr. Muhammad.
It is unclear from the record whether the change
in the law was ever adequately explained to Mr.
Muhammad or whether he would have agreed to the plea
if he had been apprised of the correct state of the
law. What is clear is that he entered into his plea
bargain under the terms of an oppressive statutory
scheme no longer in force at the time of his plea.
This casts a long shadow over the voluntariness of
his plea and, by extension, the factual basis for his
Appeal Br. at 16-17 (internal citations and footnote omitted).
The Second Circuit rejected the defendant’s arguments and
held that, under the circumstances, it was not error to apply
the penalty provision in 21 U.S.C. § 841(b)(1)(B):
On September 7, 2010, just over a month after the Fair
Sentencing Act lowered the penalties for crack cocaine
offenses, see Fair Sentencing Act of 2010, Pub.L. No. 111–
220, 124 Stat. 2372, Muhammad entered into a plea agreement
with the Government and pleaded guilty to counts one
through eleven of the second superseding indictment. By
pleading guilty to count one of the indictment, Muhammad
acknowledged that he conspired to distribute at least 50
grams of cocaine base. The plea agreement stated that this
conduct violated 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and
846. It therefore provided that Muhammad, who had a prior
felony drug conviction, faced a mandatory minimum sentence
of 20 years under § 841(b)(1)(A). The Government now
concedes that this was incorrect. The higher drug quantity
thresholds implemented by the Fair Sentencing Act apply to
offenders, like Muhammad, whose criminal conduct occurred
prior to the Act but who were sentenced after the Act took
effect. See Dorsey v. United States, ––– U.S. ––––, 132
S.Ct. 2321, 2331, 183 L.Ed.2d 250 (2012). Therefore, to be
subject to the 20–year mandatory minimum in § 841(b)(1)(A)
under the Act, Muhammad would need to have conspired to
distribute at least 280 grams of crack cocaine. See 21
U.S.C. § 841(b)(1)(A)(iii). If he possessed only 50 grams—
more than 28 grams but less than 280 grams—he would be
subject to the 10–year mandatory minimum contained in §
841(b)(1)(B). The District Court acknowledged at sentencing
that § 841(b)(1)(B) was the applicable penalty provision
and that Muhammad was subject to that ten-year mandatory
minimum sentence. Nevertheless, it sentenced Muhammad to 20
years' imprisonment based on the Guidelines and the factors
listed in § 3553(a). As counsel acknowledged at oral
argument, Muhammad never sought to withdraw or otherwise
challenge the sufficiency of his guilty plea before the
District Court, and our review is therefore for plain
error. See United States v. Garcia, 587 F.3d 509, 515 (2d
We reject Muhammad's argument that the District Court erred
under United States v. Gonzalez, 420 F.3d 111 (2d
Cir.2005). In that case, Gonzalez did not admit to, and in
fact disputed, the drug quantity element of § 841(b)(1)(A),
and that element was never proven to a jury. Gonzalez, 420
F.3d at 115. We therefore held that his plea “at best
supports conviction on a lesser, unquantified drug charge,
whose sentencing range is prescribed by § 841(b)(1)(C).”
Id. Here, by contrast, Muhammad admitted that his conduct
involved at least 50 grams of crack cocaine in his plea
allocution and in his plea agreement, both of which
supported a conviction for violating § 841(b)(1)(B). We
find no support for Muhammad's argument that the more
severe penalties in place before the Fair Sentencing Act
cast doubt on the voluntariness of his plea. We therefore
find no error in his sentence.
United States v. Muhammad, 520 Fed. Appx. at 36–37.
Because the Second Circuit addressed and rejected the same
claim regarding his sentencing that Muhammad raises in this
petition, the claim is procedurally barred because he “may not
relitigate issues that were raised and considered on direct
Perez, 129 F.3d at 260.
C. Ineffective Assistance of Counsel
The petitioner claims that his trial counsel was
ineffective for failing to raise the FSA issue prior to the
He argues that his trial counsel:
inadequate representation at
sentencing when counsel stood mute and failed to argue at
the sentencing hearing that the “Fair Sentencing Act”
amended statutory penalty under 21 U.S.C. § 841(b)(1)
(B)(iii), which sets a threshold of 28 grams of crack
cocaine, [and there] was no indictment of a Grand Jury
pertaining to count one.
Petitioner also contends that
representation at the sentencing hearing when counsel,
841(b)(1)(C), pertaining to Counts Four, Seven, Eight,
Nine, T[en], and Eleven was no indictment of a grand jury.
Doc. No. 1 at 17.
In Strickland v. Washington, the Supreme Court held that a
defendant must establish (1) that his counsel’s performance
“fell below an objective standard of reasonableness” and (2)
that counsel’s unprofessional errors actually prejudiced the
466 U.S. 668, 688 (1984).
To satisfy the first, or “performance,” prong, the
defendant must show that counsel’s performance was
“ outside the wide range of professionally competent
assistance,” [Strickland, 466 U.S.] at 690, and to
satisfy the second, or “prejudice,” prong, the
defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different,” id. at 694.
Brown v. Artuz, 124 F.3d 73, 79-80 (2d Cir. 1997).
must meet both requirements of the Strickland test to
demonstrate ineffective assistance of counsel.
If a defendant
fails to satisfy one prong, the court need not consider the
See Strickland, 466 U.S. at 697.
“The court’s central
concern is not with ‘grad[ing] counsel’s performance,’ but with
discerning ‘whether, despite the strong presumption of
reliability, the result of the particular proceeding is
unreliable because of a breakdown in the adversarial process
that our system counts on to produce just results.’”
States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting
Strickland, 466 U.S. at 696-97 (internal citations omitted)).
court considering a claim of ineffective assistance must apply
a ‘strong presumption’ that counsel's representation was within
the ‘wide range’ of reasonable professional assistance.”
Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting
“The challenger’s burden is to show ‘that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.’” Id.
The second element of the Strickland test requires a
defendant to show that “there is a reasonable probability that,
but for counsel=s unprofessional errors, the result of the
proceeding would have been different . . . .”” 466 U.S. at 694.
“A reasonable probability is a probability sufficient
undermine confidence in the outcome.”
Cullen v. Pinholster, 131
S. Ct. 1388, 1403 (2011) (internal quotation marks omitted).
“That requires a substantial, not just conceivable, likelihood
of a different result.”
Id. (internal quotation marks omitted).
In order to satisfy the prejudice element of the Strickland
test, a defendant “must make more than a bare allegation” of
United States v. Horne, 987 F.2d 833, 836 (D.C. Cir.
The petitioner’s claim fails for two reasons.
reflected in the summary order affirming the sentence in the
petitioner’s case, it was not error for the court to apply the
FSA as it did.
The grand jury indicted the defendant for the
offense of conspiring to distribute 50 grams or more of cocaine
base, and the defendant pleaded guilty to that offense.
Thus, it was proper for the court to apply the penalties for
the 28-gram offense, as set forth in the amended version of 21
U.S.C. § 841(b)(1)(B).
Consequently, the petitioner can not
establish either that his counsel’s performance was below an
objective standard of reasonableness or that the defendant’s
defense was actually prejudiced.
Second, even if the petitioner’s trial counsel had made
the claims now being advanced by the petitioner and was
successful with respect to these claims, the remedy would not
have been dismissal of any charges, but rather a ruling
allowing the defendant to withdraw his guilty pleas.
defendant had withdrawn his guilty pleas, that would have given
the government the opportunity, which it did not otherwise
have, to seek a superseding indictment charging the 280-gram
threshold in Count One so that the defendant would have been
exposed to a 240-month statutory mandatory minimum rather than
a 10-year one.
Thus, a successful challenge by defense
counsel based on the legal argument the petitioner now contends
was appropriate could have resulted in the defendant facing a
higher mandatory minimum sentence.
Consequently, once again,
the petitioner can not establish either that his counsel’s
performance was below an objective standard of reasonableness
or that the defendant’s defense was actually prejudiced.
For the reasons set forth above, the motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. No.
1) is hereby DENIED.
The court will not issue a certificate of
appealability because Muhammad has not made a substantial
showing of the denial of a constitutional right.
See 28 U.S.C.
It is so ordered.
Signed this 11th day of September, 2017 at Hartford,
Alvin W. Thompson
United States District Judge
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