Syed v. United States of America

Filing 14

ORDER overruling Petitioner's objections, adopting 11 Report and Recommendations, denying the motion file pursuant to 28 U.S.C. § 2255, and denying a COA in this case. The Court closes this civil action and directs the Clerk to enter final judgment in favor of Respondent. Signed by Chief Judge J. Randal Hall on 08/07/2018. (thb)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

FA WAD SHAH SYED,

Petitioner,
CV 117-036

V.

(Formerly CR 113-061)
UNITED STATES OF AMERICA,

Respondent.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation ("R&R"), to which objections have been filed. (Doc.
no. 13.) Although nothing in Petitioner's objections undermines the Magistrate Judge's
recommendation, the Court will briefly address three of Petitioner's arguments.

First, Petitioner argues the Magistrate Judge erred by suggesting Petitioner's burden

for showing his trial counsel was ineffective by failing to renew the motion for judgment for
acquittal is higher because of Eleventh Circuit dicta on direct appeal of Petitioner's
conviction. (Doc. no. 13, p. 3.) On appeal, the Eleventh Circuit applied the manifest
miscarriage ofjustice standard to Petitioner's sufficiency of the evidence argument instead of
the reasonable trier of fact standard because Petitioner's trial counsel failed to renew the

motion for judgment of acquittal at the close of evidence. United States v. Sved, 616 F.

App'x 973, 977-78 (11th Cir. 2015). The court rejected Petitioner's argument based on the
manifest miscarriage of justice standard. Id. Nevertheless, the court stated "[a] reasonable

jury could have concluded that [Petitioner] took a substantial step, marking his actions as
criminal and corroborating his intent to encourage Samantha to have sex with him." Id at

978. Although the Magistrate Judge noted the Eleventh Circuit's statement as an indication
Petitioner would not have received a different outcome on appeal under the reasonable trier

of fact standard, the Magistrate Judge ultimately based its conclusion on Eleventh Circuit
precedent and the overwhelming evidence of guilt against Petitioner. (Doc. no. 11, pp. 2325.) The Magistrate Judge did not hold Petitioner's argument to a higher standard based on
the Eleventh Circuit's statement. Accordingly, Petitioner's objection is unfounded.

Second, Petitioner argues the Magistrate Judge stated Petitioner cites no cases in

support of his argument travel cannot constitute a substantial step toward violating § 2422(b),
when, in fact. Petitioner cited United States v. Nitschke. 843 F. Supp. 2d 4(D.D.C. 2011)for

that proposition. (Doc. no. 13, pp. 4-6.) Petitioner is correct he cited Nitschke in his
amended motion. (Doc. no. 7, p. 14.) Nevertheless, Nitschke is, at best, persuasive authority
and inconsistent with binding Eleventh Circuit precedent, which the Magistrate Judge
discussed in detail. (Doc. no. 11, pp. 23-25.) Furthermore, the Magistrate Judge also
concluded Petitioner's online communications alone satisfied the substantial step

requirement. (Id at 25.) Accordingly, Petitioner's argument does not undermine the
Magistrate Judge's well-reasoned conclusion.

Third, Petitioner argues the District Court "said nothing about" the use of interstate
commerce element of § 2422(b) in its jury instructions. (Doc. no. 13, p. 7.) Petitioner is
incorrect. The District Court specifically: (1)recited the charges listed in the indictment;(2)
discussed the crime of attempt to commit § 2422(b) specifically; and (3) defined telephones,

cellular telephones, and the internet as facilities of interstate commerce. CR 113-061, doc.
no. 108, pp. 410-12. Accordingly, Petitioner's argument is without merit.
Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the Report
and Recommendation of the Magistrate Judge as its opinion, and DENIES Petitioner's
motion filed pursuant to 28 U.S.C. § 2255.

Further, a federal prisoner must obtain a certificate of appealability ("COA") before

appealing the denial of his motion to vacate. This Court "must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant." Rule 11(a) to the Rules
Governing Section 2255 Proceedings. This Court should grant a COA only if the prisoner
makes a "substantial showing ofthe denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
For the reasons set forth in the Report and Recommendation, and in consideration of the
standards enunciated in Slack v. McDanieh 529 U.S. 473, 482-84 (2000), Petitioner has

failed to make the requisite showing. Accordingly, the Court DENIES a COA in this case.'
Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not

be taken in good faith. Accordingly, Petitioner is not entitled to appeal in forma pauperis.
See 28 U.S.C. § 1915(a)(3).

Upon the foregoing, the Court CLOSES this civil action and DIRECTS the Clerk to

'"If the court denies a certificate, a party may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a)
to the Rules Governing Section 2255 Proceedings.

enter final judgment in favor of Respondent.

SO ORDERED this

day of August, 2018, at Augusta, Georgia.

HON(»^U&feE J. RANDAL HALL

UNITED States district judge
lOUTI^RN district OF GEORGIA