ALSALIBI v. UNITED STATES OF AMERICA
Filing
11
OPINION. Signed by Judge Susan D. Wigenton on 10/31/11. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
FIRAS AL-SALIBI,
Civil Action No. 10-1996
(SDW)
Petitioner,
v.
OPINION
UNITED STATES OF AMERICA,
Respondent.
October 31, 2011
WIGENTON, District Judge.
Before the Court is the petition of Firas Al-Salibi (“Al-Salibi” or “Petitioner”) to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the “Petition”). The United
States of America (the “Government” or “Respondent”) moves to dismiss the Petition. For the
reasons set forth below, the court DENIES the Petition and GRANTS Respondent‟s Motion to
Dismiss with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2007, Petitioner, a non-resident alien from West Bank, was arrested in the
United States pursuant to an immigration warrant. (Government‟s Appendix (hereinafter “App.”)
at 7-8, United States v. Al-Salibi, No. 07-687, 2008 WL 2699429, at *1 (June 27, 2008). Prior to
Petitioner‟s arrest, the Federal Bureau of Investigation (“FBI”) investigated and suspected
Petitioner‟s possession and use of fraudulent identification. (App. at 8.) Following the arrest,
while in prison, Petitioner called and wrote a letter to his brother, Nidal, to ask for help
recovering Petitioner‟s belongings. (Id. at 8-9.) During their phone calls, which began with an
automated announcement notifying them that the call might be recorded, Nidal informed
Petitioner that the calls could be monitored. (App. at 123-24, Tr. of Trial at 54-55.) Nidal,
assuming that Petitioner gave him permission to retrieve Petitioner‟s belongings, asked
Petitioner‟s landlord for entry to Petitioner‟s room. (See App. at 9-10, Al-Salibi, 2008 WL
2699429, at *3.) The landlord, suspicious of Nidal, contacted the FBI, as Petitioner had recently
disappeared and had previously stated that he had no family in the United States. (Id. at 10.)
Thereafter, the FBI suspected that Petitioner‟s belongings were removed from his residence, so
in order to prevent destruction of evidence, the FBI went to Nidal‟s home. (Id. at 11.) After
obtaining consent from Nidal, the FBI searched Nidal‟s apartment and vehicle without an arrest
or search warrant. (See id. at 11, 13.) The searches revealed that Petitioner possessed DMV
cards, credit cards, and birth certificates in the name of Azra Eliaho and/ or Joseito Montalvo.
(Id. at 14, n. 11.) During the search, the FBI also uncovered Petitioner‟s letter to his brother.1
(Id. at 15.)
On August 17, 2007, following Petitioner‟s arrest, a federal grand jury charged Petitioner
with a two-count Indictment, Count One, “willfully and knowingly mak[ing] a false statement in
an application for a passport” pursuant to 18 U.S.C. §§ 1542 and 2, and with Count Two,
“knowingly transfer[ring], possess[ing], or us[ing], without lawful authority, a means of
identification of another person,” in violation of 18 U.S.C. §§ 1028A(a)(1), 2. (See App. at 7-8,
Al-Salibi, 2008 WL 2699429, at *1.) Then, on July 27, 2008, Judge Greenaway rendered an
1
Nidal later confirmed that this letter was correctly translated into English. (App. at 119-120, Tr. of Trial at 50-51.)
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Opinion and Order denying the motion to suppress evidence, which Petitioner‟s counsel, James
Patton, Esq., filed on October 3, 2007.2 (See id. at 4-6.)
On August 8, 2008, a grand jury returned the following six-count Superseding Indictment
against Petitioner:
Count One: “knowingly and willfully mak[ing] a false statement in an application
for passport” in violation of 18 U.S.C. §§ 1542, 2. The date of this offense was
April 5, 2005.
Count Two: “knowingly transfer[ring], possess[ing], and us[ing], without lawful
authority, means of identification of another person . . . during and in relation to a
felony violation
. . . namely making a false statement in a U.S. Passport
application as alleged in Count One” in violation of 18 U.S.C. §§ 1028A(a)(1), 2.
The date of this offense was April 5, 2005.
Count Three: “knowingly and willfully us[ing] and attempt[ing] to use a passport
issued under the authority of the United States . . . to gain entry into the United
States at Newark Liberty International Airport” in violation of 18 U.S.C. § 1542
and Section 2. The date of this offense was November 15, 2005.
Count Four: “knowingly transfer[ring], possess[ing], and us[ing], without lawful
authority, means of identification of another person . . . during and in relation to a
2
The Honorable Joseph A. Greenaway, Jr. found:
[T]he Government has met its burden, and proved that the warrantless search of
Nidal's apartment, and Defendant's suitcase and toiletries bag, was reasonable . .
. [Al-Salibi] gave Nidal access and control over the suitcase and toiletries bag . .
. Nidal's consent was voluntary. Therefore, the search was valid . . . it was
reasonable for the FBI agents to believe that Nidal had access and control over
the suitcase and toiletries bag for most purposes . . . Nidal's consent was
voluntary. Therefore, the search was valid . . . [Al-Salibi‟s] Motion to Suppress
Evidence is denied.
United States v. Al-Salibi, No. 07-687, 2008 WL 2699429, at *12 (D.N.J. June 27, 2008).
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felony violation . . . namely using a U.S. passport obtained by reason of a false
statement as alleged in Count Three” in violation of U.S.C. §§ 1028A(a)(1), 2.
The date of this offense was November 15, 2005.
Count Five: “knowingly and willfully us[ing] and attempt[ing] to use a passport . .
. to gain entry into the United States at Newark Liberty Airport” in violation of 18
U.S.C. §§ 1542, 2. The date of this offense was April 15, 2006.
Count Six: “knowingly transfer[ring], possess[ing], and us[ing], without lawful
authority, means of identification of another person . . . during and in relation to a
felony violation . . . namely using a U.S. passport obtained by reason of a false
statement as alleged in Count Five” in violation of U.S.C. §§ 1028A(a)(1), 2. The
date of this offense was April 15, 2006.
(Id. at 30-35.)
Petitioner did not wish to continue with Mr. Patton as his counsel, so on September 8,
2008, this Court appointed Henry E. Klingeman, Esq., and Anna Cominsky, Esq., to represent
Petitioner. (App. at 42, Gov‟t‟s Br. 3; See App. at 59-60, Tr. of Status Conf. at 3-4.)
On September 24, 2008, Petitioner filed a pro se motion to dismiss the indictment,
contending that the Superseding Indictment contained multiplicities in violation of the Fifth
Amendment‟s Double Jeopardy Clause. (App. at 37, Mot. to Dismiss Indictment.) On October
29, 2008, Petitioner filed a pro se “second motion to suppress evidence,” concerning evidence
that Judge Greenaway had previously ordered to be admissible. (See App. at 38, Second Mot. to
Suppress Evidence.) For both procedural and substantive reasons, Judge Greenaway denied
Petitioner‟s pro se motion to suppress evidence. (App. at 61, Tr. of Status Conf. at 5.) Shortly
thereafter, on November 19, 2008, Mr. Klingeman filed a letter to withdraw Petitioner‟s
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remaining pro se motions and another letter regarding Petitioner‟s wish to enter a conditional
guilty plea. (App. at 65-66, Letters by Henry E. Klingeman, Esq.)
On October 30, 2008, the day after the Government filed a brief concerning the status of
Petitioner‟s legal representation, Judge Greenaway held a status conference where Petitioner
expressed his decision to be represented by Mr. Klingeman. (App. at 39-56, Gov‟t‟s Br. 1-17;
App. at 61, Tr. of Status Conf. at 5.) Further, Petitioner knew he had the right to represent
himself. (App. at 59-60, Tr. of Status Conf. at 3-4.)
Petitioner‟s trial began on November 20, 2008,3 and four days later, the jury returned a
guilty verdict on all counts in the Superseding Indictment. (See App. at 418, Tr. of Sentencing at
100.) As a result, on April 20, 2009, Petitioner was sentenced to 54 months in prison. (See App.
at 445, Tr. of Sentencing at 25.) On April 27, 2009, a Judgment of Conviction was filed. (App.
at 448, J. of Conviction.) The next day, Petitioner filed a pro se Notice of Appeal. (App. at 452,
Pro Se Notice of Appeal.) Two days later, Mr. Klingeman also filed a Notice of Appeal on
Petitioner‟s behalf. (App. at 453, Notice of Appeal.) On June 22, 2009, Judge Greenaway
modified parts of the sentence that would run concurrently to others by filing an Amended
Judgment of Conviction. (App. at 453, Am. J. of Conviction.) On January 20, 2010, Mr.
Klingeman filed a brief on Petitioner‟s behalf, however, only addressing the issues related to
Judge Greenaway‟s denial of Petitioner‟s first suppression motion. (App. at 458-463, Appellant‟s
Br. 1-3.)
Three months later, on April 20, 2010, the instant pro se Petition was filed under 28
U.S.C. § 2255, claiming that (1) the Superseding Indictment was defective for charging multiple
counts of 18 U.S.C. § 1542, (2) Chapter 2 enhancement under the United States Sentencing
Guidelines was unwarranted, (3) the Superseding Indictment inappropriately used 18 U.S.C. §
3
The Honorable Joseph A. Greenaway, Jr. presided over Petitioner‟s trial. (App. at 69, Tr. of Trial at 1.)
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1542 as an underlying offense for the Counts charging violations of 18 U.S.C. § 1028A, and that
(4) Mr. Klingeman provided ineffective assistance of counsel. (App. at 489-494, Pet. under 28
U.S.C. § 2255 at 1-6.) In connection with the Petition, a Miller order4 was filed on May 26,
2010. (App. at 495, Miller Order.)
Thereafter, on June 29, 2010, the Third Circuit affirmed Judge Greenaway‟s denial of
Petitioner‟s first motion to suppress evidence. (App. at 496-98, United States v. Al-Salibi, No.
09-2293, 385 Fed. Appx. 127, 128 (June 29, 2010)).
LEGAL STANDARD FOR § 2255 PETITIONS
A district court, in considering a petition under 28 U.S.C. § 2255, must “accept the truth
of the [petitioner‟s] factual allegations unless they are clearly frivolous on the basis of the
existing record.” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (citation omitted)
(internal quotation marks omitted). If the § 2255 petition and the underlying case record show
conclusively that the petitioner is not entitled to relief, the district court is not required to hold an
evidentiary hearing. Gov’t of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Furthermore, Rule
4(b) of the RULES GOVERNING § 2255 PROCEEDINGS (2011) provides: “If it plainly appears from
the [petition], any attached exhibits, and the record of prior proceedings that the [petitioner] is
not entitled to relief, the judge must dismiss the [petition] and direct the clerk to notify the
[petitioner].”
Habeas corpus is not a substitute for a direct appeal. See United States v. Frady, 456 U.S.
152, 165 (1982).
Indeed, greater deference to state court decisions is required on habeas
4
A Miller order is a notice and order, pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), advising pro
se petitioners to have their pleading: ruled upon filed; recharacterized as a § 2255 motion, which will cause a
petitioner to lose the ability to file a second pleading absent certification from the Court of Appeals; or withdrawn in
order to file an all-inclusive § 2255 Petition subject to the one year period included in the Antiterrorism Effective
Death Penalty Act. If the petitioner does not respond within 45 days, their motion is “ruled upon as filed.” (App. at
495, Miller Order.)
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petitions than on direct appeal because a writ of habeas corpus is “a collateral attack against a
criminal conviction after society's legitimate interest in the finality of the judgment has been
perfected.” See id. at 164. Thus, if the petitioner failed to raise a claim on direct review, “the
writ is available only if the petitioner establishes „cause‟ for the waiver and shows „actual
prejudice resulting from the alleged . . . violation.‟”5 Reed v. Farley, 512 U.S. 339, 354 (1994)
(quoting Wainright v. Sykes, 433 U.S. 72, 84 (1977)).
The petitioner is required to show “cause” by demonstrating he was unable to raise the
claim in state court because an “objective factor external to the defense impeded counsel‟s
efforts.” McCleskey v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier, 477 U.S. 478,
488 (1986)). Cause must be “something external to the petitioner, something that cannot be
fairly attributed to him.” Coleman v. Thompson, 501 U.S. 722, 753 (1991). For instance,
“interference by officials that makes compliance with the State‟s procedural rule impracticable,
and a showing that the factual or legal basis for a claim was not reasonably available to counsel.”
McClesky, 499 U.S. at 494 (internal quotation marks omitted) (citation omitted).
“[C]onstitutionally ineffective assistance of counsel . . . is cause,” whereas “[a]ttorney error short
of ineffective assistance of counsel
. . . does not constitute cause and will not excuse a
procedural default.” Id. (first alteration in original) (internal quotation marks omitted) (citation
omitted). A finding of prejudice requires a showing that the claimed error “„so infected the
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In addition, a habeas petitioner can avoid procedural default absent cause and prejudice if he can “demonstrate that
failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991). However, such a showing is narrowly limited and not applicable to the instant action. The
Supreme Court found:
To ensure that the fundamental miscarriage of justice exception would remain
“rare” and would only be applied in the “extraordinary case,” while at the same
time ensuring that the exception would extend relief to those who were truly
deserving, this Court explicitly tied the miscarriage of justice exception to the
petitioner's innocence.
Schlup v. Delo, 513 U.S. 298, 321 (1995).
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entire trial that the resulting conviction violates due process.‟” Frady, 456 U.S. at 169 (quoting
Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).
DISCUSSION
Petitioner claims that (1) the Superseding Indictment was defective for charging multiple
counts of 18 U.S.C. § 1542, (2) Chapter 2 enhancement under the United States Sentencing
Guidelines was unwarranted, (3) the Superseding Indictment inappropriately used 18 U.S.C. §
1542 as an underlying offense for the Counts charging violations of 18 U.S.C. § 1028A, and that
(4) Mr. Klingeman provided ineffective assistance of counsel. (App. at 489-494, Pet. under 28
U.S.C. § 2255 at 1-6.) Petitioner did not raise any of these claims on direct appeal in state court
or in any state post-conviction proceeding, so these claims are procedurally barred unless he can
establish “cause” for his failure to raise his present claims on direct review. See Reed v. Farley,
512 U.S. at 354. As discussed above, ineffective assistance of counsel constitutes such “cause.”
McCleskey, 499 U.S. at 493.
Therefore, if Petitioner can establish ineffective assistance of
counsel, he can avoid procedural default and this Court can reach the merits of his claim.
However, as is discussed below, Petitioner cannot establish ineffective assistance of counsel and
thus cannot establish cause so as to avoid procedural default.
Standard for Ineffective Assistance of Counsel
Section 2255 petitioners bear the burden of proving ineffective assistance of counsel.
United States v. Baynes, 622 F.2d 66, 69 (3d Cir. 1980). A defendant is denied the right to
effective assistance of counsel if (1) his attorney‟s performance falls below “an objective
standard of reasonableness,” and (2) there is a “reasonable probability” that such ineffectiveness
prejudiced the outcome of the trial. Strickland v. Washington, 466 U.S. 688, 688, 695 (1984).
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The first prong requires a petitioner to identify those acts or omissions by counsel that
were “outside the wide range of professionally competent assistance.” Id. at 690. A court must
be highly deferential when assessing counsel‟s performance, and “should recognize that counsel
is strongly presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment.” Id. Further, a court must make “every effort .
. . to eliminate the distorting effects of hindsight.” Id. at 689. The Strickland Court reasoned,
“[i]t is all too tempting for a defendant to second-guess counsel‟s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel‟s defense after it has
proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”
Id. Therefore, a court “must judge the reasonableness of counsel‟s challenged conduct on the
facts of the particular case, viewed as of the time of counsel‟s conduct.” Id. at 690.
The second prong requires a petitioner to show a reasonable probability that, but for
counsel‟s unprofessional mistakes, the outcome of the proceeding would have been different. Id.
at 694. A reasonable probability of prejudice is one “sufficient to undermine confidence in the
outcome.” Id. Furthermore, “[i]t is not enough for a defendant to show that the errors had some
conceivable effect on the outcome of the proceeding. . . .” because “[v]irtually every act or
omission of counsel would meet that test . . . .” Id. at 693.
A. Claim 1: General Allegations Concerning Mr. Klingeman’s Performance
Petitioner generally claims that Mr. Klingeman provided ineffective assistance of
counsel. (App. at 494, Pet. at 6.) Petitioner alleges that Mr. Klingeman was “careless and
neglectful” and that he “fail [sic] to help me every time I raise [sic] an issue to him regarding my
case.” (Id.)
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This allegation is too general to satisfy either prong of the Strickland test set out above.
Further, the record supports that Mr. Klingeman sufficiently represented Petitioner in all phases
of trial and post-trial matters. In fact, after considering Mr. Klingeman‟s arguments on behalf of
Petitioner, Judge Greenaway sentenced Petitioner to fifty-four months of imprisonment instead
of the seventy-four months requested by the Government. (See App. at 422-25, Tr. of
Sentencing.)
Additionally, Mr. Klingeman‟s continuous efforts to advocate on behalf of Petitioner,
who chose to proceed pro se while being represented by Mr. Klingeman, is evidence that Mr.
Klingeman‟s behavior was neither careless nor neglectful. (See, e.g., App at 37, Mot. to Dismiss
Indictment.) Although Petitioner claimed that he wished to proceed to trial with Mr. Klingeman,
(App at 59, Tr. of Status Conf. at 3), Petitioner continued to advocate on his own behalf. (App at
438-44, Tr. of Sentencing at 18-26.) All the while, Mr. Klingeman continued to represent
Petitioner, who did not object to Mr. Klingeman‟s performance. Therefore, Petitioner‟s claim
regarding ineffective assistance of counsel is against the weight of the evidence. For these
reasons, Petitioner‟s general allegation concerning Mr. Klingeman‟s performance does not
satisfy the Strickland test. Indeed, the evidence demonstrates that Mr. Klingeman adequately
represented Petitioner‟s interests.
B. Claim 2: Appeal of the Sentence Imposed
Next, Petitioner claims that Mr. Klingeman should have appealed the fifty-four month
imprisonment sentence. (App. at 494, Pet. under 28 U.S.C. § 2255 at 6.) This argument fails
because there is no proof in the record that Petitioner asked Mr. Klingeman to appeal the
sentence. Further, it would have been unreasonable for Mr. Klingeman to dispute the sentence,
as Petitioner‟s sentence was originally supposed to be seventy-four months and had been reduced
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to fifty-four months. The evidence shows that Mr. Klingeman did not fall short of defending
Petitioner in this regard, so this Claim fails to satisfy the Strickland test.
C. Claim 3: Petitioner’s Letter to Nidal Salibi
Petitioner claims he received ineffective assistance of counsel because Mr. Klingeman
did not seek to suppress the letter found at the home of his brother, Nidal Salibi. (App. at 494,
Pet. under 28 U.S.C. § 2255 at 6.) This claim is without merit because the letter was addressed
to Nidal, who decided, on his own, to turn it over to the FBI. (See App. at 10-15, United States v.
Al-Salibi, No. 07-687, 2008 WL 2699429, at *1-5.) In other words, the letter became Nidal‟s
property, so Nidal was free to turn it over. Furthermore, the contents of the letter were relevant
to the instant case. Gibson v. Mayor& Council of City of Wilmington, 355 F.3d 215, 232 (3d Cir.
2003). Thus, it was reasonable for Mr. Klingeman to not seek suppression of the letter given that
the letter belonged to Petitioner‟s brother, who willfully turned it over, and that the letter
contained relevant evidence. Petitioner also broadly claims the letter contained an “error,” which
Mr. Klingeman failed to correct. (App. at 494, Pet. under 28 U.S.C. § 2255 at 6.) However,
Petitioner‟s brother confirmed that this translation was accurate, which is a proper basis for
introducing this letter into evidence. (See App. at 119-120, Tr. of Trial at 50-51.) Thus, these
claims fail to satisfy the Strickland test, as Mr. Klingeman‟s performance was reasonable.
D. Claim 4: Cross-examination of FBI Special Agent Walsh
Petitioner argues that Mr. Klingeman failed to cross-examine Special Agent Suzanne
Walsh about Petitioner‟s possession of false documentation. (App. at 494, Pet. under 28 U.S.C. §
2255 at 6.)
However, Mr. Klingeman did cross-examine Agent Walsh about the false
documentation. (App. at 307, Tr. of Trial at 239.) Therefore, this claim has no merit, and thus
fails the Strickland test.
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E. Claim 5: Proof “Azra Eliaho” was a Real Person
Petitioner also argues that the Government did not meet its burden to prove “Azra
Eliaho,” an alias used by Petitioner, was a real person. (App. at 494, Pet. under 28 U.S.C. § 2255
at 6.) However, Petitioner‟s charges did not relate to his use of the name “Azra Eliaho,” but
rather related to his use of the name “Joseito Montalvo.” (App. at 30-35, Superseding Indictment
at 1-6.) Thus, the Government did not have the burden to prove “Azra Eliaho” was a real person.
It follows that Mr. Klingeman did not miss an opportunity to challenge the Government‟s burden
regarding the alias “Azra Eliaho” because that name was not at issue. Thus, this Claim has no
merit under the Strickland test.
F. Claim 6: Introduction of Phone Calls
Lastly, Petitioner alleges that Mr. Klingeman was ineffective because he failed to object
to “the „phone tap‟ at trial.” (App. at 494, Pet. under 28 U.S.C. § 2255 at 6.) During the phone
calls between Petitioner and Nidal during Petitioner‟s incarceration, an automated inmate
monitoring system announced that the call may be monitored. (See App. at 123-24, Tr. of Trial at
54-55.) Since Petitioner had notice that the calls could be monitored and recorded, it would have
been futile for Mr. Klingeman to challenge the admission of these calls based on the Fourth
Amendment. In addition, the calls that were admitted demonstrated that Petitioner “knowingly
and willfully” possessed the fraudulent identifications, so they were relevant to the jury‟s
evaluation.
For these reasons, this claim also fails the Strickland test.
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CONCLUSION
For the reasons stated above, the Petition is DISMISSED with prejudice.
s/Susan D. Wigenton, U.S.D.J.
Orig: Clerk
Cc:
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