Hosseini v. Terris

Filing 4

OPINION AND ORDER Dismissing 1 Petition for Writ of Habeas Corpus filed by Amir Hosseini. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMIR HOSSEINI,
Petitioner,

Case Number 17-11386
Honorable David M. Lawson

v.
J.A. TERRIS,
Respondent.
_____________________________________/
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Amir Hosseini, currently confined at the Federal Correctional Institution in Milan,
Michigan, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Hosseini seeks
relief from his federal criminal sentence, imposed by the United States District Court for the
Northern District of Illinois. Because Hosseini has not demonstrated that his remedy under 28
U.S.C. § 2255 is inadequate or ineffective, the Court finds that he has brought this action under
section 2241 improperly and therefore will dismiss the petition.
I.
The United States Court of Appeals for the Seventh Circuit summarized the facts
surrounding Hosseini’s prosecution and conviction:
Hosseini and Obaei each owned a used-car dealership in Chicago, and together they
owned a third. The evidence at trial established that they jointly operated all three
dealerships. They frequently transferred large sums of money among the three
dealerships. They bought inventory together, moved vehicles around the three car
lots, referred customers to each other, and pooled their employee services, financial
services, and employee benefits.
They also regularly sold expensive cars to Chicago-area drug dealers, who usually
paid in cash, often in small bills—tens, twenties, and fifties rubber-banded together
and carried in paper or plastic bags or shoe boxes. On the occasions when they gave
their drug dealer customers in-house financing, Hosseini and Obaei did not require

a credit application, proof of legitimate income, or other normal financial paperwork.
They doctored sales contracts by changing purchase prices and Social Security
numbers, and often used the names of straw purchasers. They routinely failed to file
the forms required by the IRS when a customer pays $10,000 or more in cash. They
placed false liens on vehicles, which (among other things) allowed the dealerships
to claim ownership and recover the vehicles if they were seized by law enforcement,
and also enabled the drug dealers to trade in the vehicles for new cars.
Although Hosseini and Obaei frequently received large payments in cash, they
arranged their bank deposits to avoid depositing more than $10,000 in cash in any
single transaction, which would have triggered an obligation on the bank’s part to
report the cash transaction to the federal government. Prosecutors presented
evidence that on at least 51 days, Hosseini and Obaei made deposits totaling more
than $10,000 but divided the total among separate transactions to make sure that no
single deposit exceeded the $10,000 threshold. For example, on a single day,
Hosseini made six deposits of between $9,180 and $9,815 at the same bank. On
another occasion he deposited $9,750 and $9,810 at the same bank in two
transactions that occurred only five minutes apart. Likewise, on another day Obaei
deposited a total of $14,500 in two separate transactions, 15 minutes apart, at the
same bank.
This course of conduct stretched from 1995 to 2005 and involved millions of dollars
in laundered drug money. In a 100-count indictment, the government charged
Hosseini with RICO conspiracy, 18 U.S.C. § 1962; six money-laundering counts, 18
U.S.C. § 1956; 51 counts of structuring transactions to avoid reporting requirements,
31 U.S.C. § 5324; and four counts of mail fraud, 18 U.S.C. § 1341. Obaei was
charged with RICO conspiracy; aiding and abetting a drug-trafficking conspiracy,
21 U.S.C. § 846; seven money-laundering counts; 30 counts of structuring; three
counts of bank fraud, 18 U.S.C. § 1344; and four counts of mail fraud. Two of the
money-laundering counts and one structuring count were dismissed before trial, and
the jury convicted the defendants on the remaining 97 counts. Hosseini was
sentenced to 240 months in prison; Obaei received a 180-month sentence. The
district court also ordered all three dealerships forfeited.
United States v. Hosseini, 679 F.3d 544, 548-549 (7th Cir. 2012).
Among other claims, on direct appeal Hosseini challenged the sufficiency of the evidence
presented against him, relying on the Supreme Court’s narrow construction of the money-laundering
statute in United States v. Santos, 552 U.S. 507 (2008). Hosseini asserted that under Santos the
government was required to prove that the defendant engaged in the specified financial transactions

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for the purpose of laundering the “net profits” of the underlying crime, whereas at trial the
government only offered evidence that Hosseini laundered the “gross receipts.” Hosseini, 679 F.3d
at 549-550. The Seventh Circuit found that because the claim was not raised at trial, review was
limited to whether “plain error” occurred. The court then denied relief because “[a]t the time of their
trial, it was unclear whether proof of ‘proceeds’ in a concealment or avoidance money-laundering
prosecution required proof that the defendant laundered net profits of the underlying criminal
activity. Accordingly, as in [United States v. Aslan, 644 F.3d 526, 550 (7th Cir. 2011)], the claimed
error—if there was one—was not plain.” Id. at 552.
Hosseini subsequently filed a petition under section 2255 in the Northern District of Illinois
challenging his convictions on eleven grounds. The district court explained that “[g]round one
charges counsel with ineffectiveness in not having raised an issue as to defining ‘proceeds’ (as
between ‘net profits’ and ‘gross receipts’) in the jury instructions on the money laundering counts.”
United States v. Hosseini, No. 13-cv-2472, ECF No. 33, at 3 (N.D. Ill. Sept. 12, 2014). The court
denied the claim, reasoning,
the “proceeds” question was unsettled at the time of trial and, that being so, that the
government’s response correctly stated that “defense counsel’s failure to object to
a facially reasonable jury instruction cannot be ineffective assistance.” Moreover,
though reviewing that issue under a plain error standard, our Court of Appeals’
opinion, 679 F.3d at 550-52, pointed out that at the time of trial a “fractured”
Supreme Court opinion had left the issue unclear, and the Court of Appeals did not
hold that any error had taken place — but it concluded that even if that had been so,
any potential error was certainly not plain. In sum, Ground One plainly does not
support a determination of “prejudice” under Strickland [v. Washington, 466 U.S.
668 (1984)].
Ibid.
Hosseini attempted to appeal this decision, but the Seventh Circuit denied his application for
a certificate of appealability. Hosseini v. United States, No. 14-3207 (7th Cir. Jan. 15, 2015).
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Hosseini then filed a motion for relief from judgment in the district court raising additional claims
not pertinent here, but the motion was denied. Hosseini, No. 13-cv-2472, ECF No. 55 (N.D. Ill.
May 11, 2016).
Hosseini’s present petition revisits this issue in a slightly different iteration: he asserts that
he is entitled to relief under section 2241 because he is actually innocent of the money laundering
convictions in light of Santos’ construction of the money-laundering statute.
II.
Normally, the proper avenue for relief on a federal prisoner’s claim that his conviction and
sentence were imposed in violation of the federal constitution or federal law is a motion to vacate
or correct sentence under 28 U.S.C. § 2255. United States v. Peterman, 249 F.3d 458, 461 (6th Cir.
2001); Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998). Section 2255 itself confines relief
from a federal sentence to the procedures contained in that statute, except in limited circumstances:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized
to apply for relief by motion pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by motion, to the court which
sentenced him, or that such court has denied him relief, unless it also appears that
the remedy by motion is inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e) (emphasis added); see also Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir.
2012); Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999). The narrow exception prescribed
in section 2255(e) applies only where the petitioner demonstrates a claim of actual innocence that
would be barred if brought by way of a second or successive section 2255 petition. Wooten, 677
F.3d at 307; Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003).
Hosseini has not made that showing here, for two reasons. First, there is nothing before the
Court that suggests that he could not have made his Santos-based argument in his section 2255

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motion filed in the trial court. In fact, the issue was raised, although obliquely, through the claim
of ineffective assistance of counsel. Second, it does not appear that Hosseini is actually innocent
in all events.
An actual innocence claim based on a change in statutory interpretation requires the
petitioner to show, “(1) the existence of a new interpretation of statutory law, (2) which was issued
after the petitioner had a meaningful time to incorporate the new interpretation into his direct
appeals or subsequent motions, (3) is retroactive, and (4) applies to the merits of the petition to make
it more likely than not that no reasonable juror would have convicted him.” Hill v. Masters, 836
F.3d 591, 595 (6th Cir. 2016) (citing Wooten, 677 F.3d at 307-08). Furthermore, actual innocence
means “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,
623 (1998).
Hosseini’s petition here parallels the proceedings described in McLean v. Holland, No. 11124, 2012 WL 5878681 (E.D. Ky. Nov. 21, 2012), aff’d No. 12-6526, 2013 U.S. App. LEXIS 26412
(6th Cir. Sept. 23, 2013). McLean was convicted in 2002 of several offenses including money
laundering in violation of 18 U.S.C. § 1956. 2012 WL 5878681 at *1. After the Supreme Court
decided Santos, McLean amended his pending section 2255 motion to claim that his counsel was
ineffective for failing to raise the issue decided in Santos. Ibid. The trial court and Fourth Circuit
denied relief. Id. at *2. Then, in 2011, McLean filed a section 2241 petition in the Western District
of Kentucky, asserting among other claims that (1) his convictions for the several substantive
offenses and the conspiracy charge were invalid, in light of Santos; and (2) he was actually innocent
of the money-laundering offense because Santos defined the statutory term “proceeds” to signify

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“profits,” not gross “receipts”; and his conviction was based on the gross receipts of the illegal
activity. Id. at *3.
The district court denied the petition, based in part on the conclusion that McLean did not
establish that he was actually innocent of money laundering, even under Santos, because the trial
court had rejected that claim in the earlier section 2255 proceedings. Id. at *4. McLean appealed,
and the Sixth Circuit found that the section 2241 petition was appropriately dismissed despite
McLean’s argument that he was actually innocent in light of Santos:
To the extent that McLean’s second claim is based on Santos, he has not shown that
§ 2255 is “inadequate or ineffective to test the legality of his detention.” Instead, he
is attempting to raise a claim that he could have raised previously because his current
Santos claim was available to him during the prior § 2255 proceedings. Indeed, the
district court allowed McLean to amend his § 2255 motion based on Santos, but
instead of challenging the validity of his convictions in light of Santos, McLean
asserted a claim that counsel was ineffective for failing to argue that his
money-laundering conviction was invalid in light of Santos. However, § 2255 is not
an inadequate remedy where the petitioner simply did not raise the alleged error in
a prior § 2255 petition and is now barred from doing so or because § 2255 relief has
already been denied. Finally, McLean cannot establish his factual innocence based
on Santos because, as the district court properly determined when it denied his prior
§ 2255 motion, his money-laundering convictions were proper — even in light of
Santos — because McLean had used the proceeds from his fraudulent mortgage
scheme to engage in new criminal schemes and for his own personal expenditures.
McLean, 2013 U.S. App. LEXIS 26412, *6-7 (citations omitted).
As in McLean, Hosseini could have (and did) raise his Santos claim during his direct appeal
and his section 2255 proceeding. On direct appeal he raised the claim as a challenge to the
sufficiency of the evidence, and in his section 2255 proceeding he chose to raise the claim as one
of ineffective assistance of counsel. Thus, Hosseini had a meaningful opportunity to raise his Santos
claim on direct appeal and on post-conviction review. Wooten, 677 F.3d at 307-08. The fact that
the reviewing courts denied him relief is not a basis for finding that those proceedings were

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inadequate. See Charles, 180 F.3d at 756. “Sixth Circuit law is clear that a habeas petitioner cannot
be allowed to use a § 2241 petition as a ‘second bite at the apple,’ a de facto appeal from a trial
court’s denial of relief under § 2255.” McLean, 2012 WL 5878681, at *4 (citing Charles, 180 F.3d
at 756).
Moreover, Hosseini has not alleged or put forth any evidence that it is more likely than not
that no reasonable juror would have convicted him if Santos’ interpretation of the money-laundering
statute had been used at his trial. Hosseini merely alleges that “the same ‘transactions’ may have
been used to prove both the underlying unlawful activity and the money-laundering charges; and
thus Hosseini’s convictions for mail fraud . . . potentially ‘merged’ . . . with Hosseini’s moneylaundering conviction.” Dkt. 1, at 4 (emphasis added). He asserts that he “was potentially convicted
of several nonexistent offenses. . . .” Id. at 5 (emphasis added). A prisoner can establish actual
innocence in post-conviction proceedings only by bringing forward new exculpatory evidence.
McQuiggin v. Perkins, --- U.S. ---, 133 S. Ct. 1924, 1928 (2013). Hosseini has produced no
evidence that the government relied on the same transactions for the mail-fraud and moneylaundering charges; he instead simply asserts that the evidence presented at his trial may have been
legally insufficient in light of Santos. This allegation is insufficient to state a claim of actual
innocence.
III.
Because Hosseini has not shown that his remedy under 28 U.S.C. § 2255 is inadequate or
ineffective, he is not entitled to habeas relief from his criminal sentence under 28 U.S.C. § 2241.

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Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DISMISSED.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: July 18, 2017

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 18, 2017.
s/Susan Pinkowski
SUSAN PINKOWSKI

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