Hussein v. USA

Filing 30

ORDER DENYING 1 MOTION to Vacate, Set Aside, or Correct Sentence (2255), DISMISSING CASE and DECLINING to issue certificate of appealability. Further, the Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 12/20/2018. (jer)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
QAIS HUSSEIN,
Petitioner,
v.

Civil Case No. 17-cv-1376-DRH
Criminal Case No. 14-cr-30177-DRH

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM & ORDER
This matter is before the Court on petitioner Qais Hussein’s (“Hussein”)
motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255
(“2255”) (Doc. 1). The government filed a response in opposition of the motion (Doc.
14). Hussein then filed a reply to the government’s response (Doc. 19). On
December 19, 2018, because a great deal of overlap exists, the Court conducted a
joint evidentiary hearing regarding both Hussein’s and Majdi Odeh’s (“Odeh”) 2255
petition. For the following reasons, Hussein’s motion for relief pursuant to 28
U.S.C. § 2255 (Doc. 1) is DENIED.
I.

Introduction and Background

On October 22, 2014 a grand jury indicted Hussein and Odeh with a fourcount indictment (USA v. Hussein et al., 14-cr-30177, (Doc. 1)). Count 1 of the
indictment charged Hussein and Odeh with conspiracy to unlawfully acquire
Supplemental Nutrition Assistance Program (“SNAP”) benefits, in violation of 18
U.S.C. § 371. Id. Count 2 and 3 charged aiding and assisting in the preparation and
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presentation of a false tax return, in violation of 26 U.S.C. § 7206(2). Id. Count 4
charged trafficking in counterfeit goods, in violation of 18 U.S.C. §§ 2320(a) and 2.
Id.
On May 11, 2015, Hussein pleaded guilty to all four counts, stipulating to
losses to the Government of $1.6 million. The Court sentenced Hussein to 85
months while denying him a three-level reduction credit for acceptance of
responsibility because he frivolously challenged the loss amount at issue. Hussein’s
direct appeal was dismissed because his Plea Agreement contained appellate
waivers. United States v. Odeh, 832 F.3d 764, 765-68 (7th Cir. 2016), cert. denied,
137 S. Ct. 1106 (2/21/17).
After the dismissal of his appeal, Hussein filed his petition seeking relief
under 2255 (Doc. 1). In his 2255 petition, Hussein raises six grounds as the basis
for his relief: (1) voluntariness of plea; (2) failure to investigate and conduct
discovery; (3) loss of acceptance of responsibility; (4) obstruction of justice
enhancement; (5) speedy trial; and, (6) immigration consequences Id.
On December 19, 2018, the Court conducted a joint evidentiary hearing
regarding both Hussein’s and Odeh’s 2255 petition. During the hearing, Hussein
waived five grounds (1,2,4,5,6) as the basis of his 2255 relief and proceeded on
ground three which relates to Hussein’s loss of acceptance of responsibility.
II.

Applicable Law

A prisoner may move to vacate, set aside or correct his sentence if he claims
“the sentence was imposed in violation of the Constitution or laws of the United

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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.” 28 U.S.C. § 2255(a).
Section 2255 is an extraordinary remedy because it asks the district court
“to reopen the criminal process to a person who has already had an opportunity
for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Accordingly, relief under Section 2255 is “reserved for extraordinary situations,”
Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v.
Abrahamson, 507 U.S. 619, 633-34 (1993)), as a collateral attack pursuant to
Section 2255 is not a substitute for a direct appeal. Varela v. United States, 481
F.3d 932, 935 (7th Cir. 2007).
Thus, unless a movant demonstrates changed circumstances in fact or law,
he may not raise issues already decided on direct appeal. Olmstead v. United
States, 55 F.3d 316, 319 (7th Cir. 1995).

Further, a petitioner cannot raise

constitutional issues that he could have but did not directly appeal unless he shows
good cause for and actual prejudice from his failure to raise them on appeal, or
unless failure to consider the claim would result in a fundamental miscarriage of
justice. Bousley v. United States, 523 U.S. 614, 622 (1998); Wainwright v. Sykes,
433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir.
2000). Likewise, a Section 2255 motion cannot pursue non-constitutional issues
that were not raised on direct appeal regardless of cause and prejudice. Lanier v.
United States, 220 F.3d 833, 842 (7th Cir. 2000). The only way such issues could

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be heard in the Section 2255 context is if the alleged error of law represents “a
fundamental defect which inherently results in a complete miscarriage of justice.”
United States v. Addonizio, 442 U.S. 178, 185 (1979).
Hussein claims his plea was involuntary and unknowing. The Seventh Circuit
has held that “a guilty plea must be both a knowing and voluntary act.” Key v.
United States, 806 F.2d 133, 136 (7th Cir. 1986). “To ensure this, Federal Rule of
Criminal Procedure 11(d) requires that the trial judge ask the defendant specific
questions concerning the voluntariness of the plea agreement. This questioning
creates a record that can be used in future appeals and collateral attacks.” Id.
Hussein raises various claims which he purports to be claims of ineffective
assistance of counsel. Importantly, the Supreme Court has held that the usual
procedural default rule does not generally apply to such claims inasmuch as, “an
ineffective-assistance-of-counsel claim may be brought in a collateral proceeding
under § 2255, whether or not the petitioner could have raised the claim on direct
appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).
To succeed on an ineffective assistance of counsel claim, a petitioner must
demonstrate (1) his attorney’s performance “fell below an objective standard of
reasonableness,” and (2) “but for counsel’s unprofessional errors the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
694 (1984). To satisfy the first prong, “the Court must determine whether, in light
of all the circumstances, the identified acts or omissions were outside the wide
range of professionally competent assistance.” Id. at 690. To satisfy the second

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prong, a petitioner must demonstrate to a “reasonable probability” that without the
unprofessional errors, “the result of the proceeding would have been different.” Id.
at 696.
A district court’s analysis begins with a “strong presumption that the
defendant’s attorney rendered adequate representation of his client.” United States
v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000). Thus, a petitioner must overcome a
heavy burden to prove that his attorney was constitutionally deficient. Shell v.
United States, 448 F.3d 951, 955 (7th Cir. 2006). To establish that counsel’s
performance was deficient, the defendant must show errors so serious that “counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Atkins v. Zenk, 667 F.3d 939, 944 (7th Cir. 2012).
III.

Application

Loss of Acceptance of Responsibility
Hussein’s sole remaining ground for relief is based on his claim that his
counsel was ineffective because he failed to secure a waiver from the government
prior to joining in the motion challenging the loss calculation. Specifically, Hussein
argues that:
Counsel’s joining of co-defendant’s motion challenging the loss amount
stipulated in the plea agreement by the government. The government’s
position was accepted by the sentencing Court. Consequently, the
Court denied Hussein the 3 level reduction credit for acceptance of
Responsibility (25 months additional jail time without the 3 level
reduction). The Seventh Circuit Court of Appeals upheld the holding
of the District Court. Therefore, Hussein is serving [an] extra 25
months in jail as a result of Counsel’s Failure.
(Doc. 1, p. 7).
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The Supreme Court has held that:
We apply the two-part Strickland test to ineffective assistance of
counsel claims in the plea bargain context. Frye, 566 U.S. at 140, 132
S.Ct. 1399. First, the defendant must show deficient performance—
“that counsel’s representation fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, the defendant must show
prejudice – “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, 104 S.Ct. 2052.
United States v. Jansen, 884 F.3d 649, 656 (7th Cir. 2018).
Here, the Court does not believe Hussein’s testimony that he had no
discussion with his counsel, Mr. William Daniel (“Daniel”), about contesting the loss
amount. During the December 19 evidentiary hearing, Hussein conceded that he
made the decision to challenge the loss amount but was following Daniel’s advice
on that issue. It is appropriate for a lawyer to give advice and, at the same time, rely
on information supplied by a criminal defendant. Therefore, if a criminal
defendant, like Hussein, misrepresents such foundational information resulting in
this case to an expert witness giving testimony that was completely inaccurate, and
which resulted in an opinion that did not aid the Court in its determination, then
the Court may find such challenge to be frivolous. In this instance, the Court finds
that Hussein’s challenge of the loss amount was frivolous and the pursuit of that is
on Hussein. As such, because Hussein failed to satisfy the two-part Strickland test,
his claim for ineffective assistance of counsel is denied.

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IV.

Conclusion

For the reasons as discussed herein, Hussein’s motion under 28 U.S.C. §
2255 to vacate, set aside or correct sentence, is DENIED (Doc. 1). Hussein’s claims
are DISMISSED WITH PREJUDICE. The Court shall not issue a certificate of
appealability. Furthermore, the Clerk is instructed to close the file and enter
judgment accordingly.
IT IS SO ORDERED.

Judge Herndon
2018.12.20
13:09:43 -06'00'
United States District Judge

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