Alshalabi v. United States of America

Filing 8

MEMORANDUM & ORDER: Alshalabi's application for relief under 28 U.S.C. § 2255 does not present a justiciable controversy within the meaning of Article III, Section 2 of the United States Constitution and must be dismissed as moot. Even if the Court could entertain the application for relief under Section 2255 it would still dismiss the proceeding as barred by the waiver of post-conviction rights in Alshalabi's written plea agreement. Because Alshalabi has not made "a substa ntial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), a certificate of appealability will not issue. The Clerk of the Court is directed to close this case. C/M with appeals package. Ordered by Judge Raymond J. Dearie on 3/6/2012. (Chee, Alvin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------)C,
ABDULLAH ALSHALABI,
Petitioner,

MEMORANDUM & ORDER
-against08 CV 2734 (RJD)
UNITED STATES OF AMERICA,
Respondent.

-------------------------------------------------------)C
DEARIE, District Judge.
Abdullah Alshalabi moves pursuant to 28 U.S.c. § 2255 to vacate or set aside his
sentence. For the reasons set forth below, the motion is denied and the action is dismissed.

BACKGROUND
On or about November 29,2005, Alshalabi was charged, under a two-count superseding
indictment, with conspiracy to distribute and possession with intent to distribute a substance
containing MDMA, also known as ecstasy, and with distribution and possession with intent to
distribute 500 grams or more of methamphetamine. See 05 CR 350, Docket Entry ("DE") 28.
On December I, 2005, pursuant to a written plea agreement Alshalabi pled guilty to the ecstasy

conspiracy. See DE 29 (Minute Entry), DE 34 (Transcript)
Paragraph 4 of the plea agreement provides that "[Alshalabi] agrees not to file an appeal
or otherwise challenge the conviction or sentence in the event that the Court imposes a term of
imprisonment of 121 months or below" and that "[t]his waiver is binding without regard to the
sentencing analysis used by the Court."
During the plea proceeding, the Court inquired extensively into the voluntariness of

Alshalabi's decision to enter a plea:
THE COURT:

If you wish at any time during the proceedings to confer with your
attorney, simply ask me and I will give you whatever time you
need to talk privately with Ms. David. Do you understand that?

ALSHALABI:

Yes.

THE COURT:

[D]o you feel that you've had adequate time to consider your
decision to offer this plea of guilty?

ALSHALABI:

Yes.

THE COURT:

If you have at any time difficulty understanding the interpreter,
once again, don't hesitate to tell me. All right, sir?

ALSHALABI:

Yes, sir.

THE COURT:

I have before me a document that bears the caption of this case and
the terms plea agreement ... [n]ow Mr. Alshalabi, has this
agreement been carefully read to you by the interpreter?

ALSHALABI:

Yes.

THE COURT:

Have you had enough time to review this agreement with the
interpreter and counsel?

ALSHALABI:

Yes.

THE COURT:

And have you done just that?

ALSHALABI:

Yes.

THE COURT:

Do you feel that you understand everything that's contained in the
agreement?

ALSHALABI:

Yes.

THE COURT:

Do you have any questions you would like to put to the Court
about anything in the agreement?

ALSHALABI:

No. (DE 34 at 3-11)

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The Court remarked that while it was "not reviewing every provision" of the agreement
during the plea proceeding, it would highlight "one in particular" (DE 34 at 23):
THE COURT:

Paragraph 4 of your plea agreement provides, as I understand it,
that you will not in any event appeal your sentence or challenge the
conviction, as long as I impose a sentence of 121 months or less.
Do you understand that?

ALSHALABI:

Yes.

THE COURT:

Okay. So, to round out the point, two things would have to happen
for you to appeal your sentence. First, I would have to impose a
sentence in excess of 121 months and secondly, you would have to
assert for specific reasons that in your view and counsel's, that
[the1sentence was on its face unreasonable. Do you understand
that?

ALSHALABI:

Yes. (DE 34 at 24).

Six months after entering his plea, in a motion filed on or about June 6, 2006, Alshalabi
sought to withdraw it. DE 38. 1 On July 13, 2006, the Court heard argument on the motion and
denied it. DE 42. On August 4,2006, at sentencing, the Court again denied Alshalabi's request
to withdraw his plea, as follows:
And I want to say that before coming out here again today, I
reviewed both the motion, the government's papers in opposition,
the transcript of the plea that took place before me, just to make
absolutely certain that I am comfortable, as indeed I am, with the
ruling I made the last time ... .1 looked in particular at the minutes
of the plea for any hint of equivocation, doubt, hesitation,
reservation at all ... and I had found absolutely none.

DE at 5-6. The Court further noted that Alshalabi had "had the benefit of one or two but three

Joyce David represented Alshalabi at the time he entered his plea, but on April 20, 2006
Ms. David advised the Court that she had a conflict with Alshalabi. Accordingly, the Court
relieved Ms. David that day and appointed Michael Hurwitz (DE 35), who represented Alshalabi
on the motion to vacate his plea. Alshalabi supplemented counsel's submission on the motion
with two pro se letters. See DE 41, 43.
1

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attorneys," and that, "upon inquiry by th[e] Court in the context of the plea agreement," the
Court was satisfied that Alshalabi was "fully committed to his chosen course of action." DE at
6.
The Court then imposed a custodial sentence of 72 months plus three years' supervised
release. The sentence reflected a two-level downward departure for Alshalabi's minor role in the
conspiracy and was at the low end of the Guideline range of 70 to 87 months.
Alshalabi appealed, arguing that the Court abused its discretion in denying his motion to
vacate his guilty plea. In a summary order entered November 1,2007, the Second Circuit
"f[ound]that the district court did not abuse its discretion in denying [Alashabi's] motion," and
affirmed the conviction. United States v. Alshalabi, 253 Fed. Appx. 67, 2007 WL 3230760 (2d
Cir. Nov. 1, 2007). The Circuit further found that:
Alashabi's claim of innocence is belied by the unequivocal
statements he made on the record concerning his guilt ...
Moreover, prior to accepting Alshalabi's plea, [the district court]
asked several times, and in several different ways, whether
Alshalabi had adequate time with his attorney, was satisfied with
the representation she had provided, and understood the charges to
which he was pleading guilty. The district court considered
Alshalabi's demeanor, education level, and took great care in
confirming the voluntariness of his decision to plead guilty.
Id. 253 Fed. Appx. at 67.
Here, in his section 2255 proceeding, Alshalabi is no longer challenging the validity of
his plea but complains only of the length of his sentence. He claims there is an unwarranted
disparity between his sentence and the terms of incarceration imposed on certain co-conspirators
who were prosecuted in the Eastern District of Kentucky. Each ofthe four Kentucky coconspirators pled guilty to one count of conspiracy to distribute pseudoephedrine and one count
of traveling in interstate commerce in furtherance of narcotics trafficking. Two of the four

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received sentences of 40 months; a third, 48 months, and the fourth, 108 months.
The sole relief that Alshalabi seeks in this proceeding is a sentence reduction of between
24 and 36 months.

DISCUSSION
A.

Justiciability
Alshalabi was in custody at the time he commenced this proceeding and thus satisfied,

initially, the jurisdictional "in custody" requirement ofthe habeas statute. See Spencer v.
Kemna, 523 U.S. 1,7 (1998). On or about August 2,2010, however, Alshalabi completed the
custodial portion of his sentence and is now serving his three-year term of supervised release.
2 The

threshold issue, therefore, is one of mootness and justiciability: i.e., whether the completion

of the custodial portion of Alshalabi' s sentence means that his challenge to the length of that
sentence is no longer a case or controversy within the meaning of Article III, Section 2 of the
United States Constitution.
As the Supreme Court recently reaffirmed, "It is a basic principle of Article III that a
justiciable case or controversy must remain "extant at all stages of review, not merely at the time
the complaint is filed." United States v. Juvenile Male, _ U.S._, 131 S. Ct. 2860, 2864 (2011)
(internal quotation and citation omitted). "[T]hroughout the litigation," the party seeking relief
'''must have suffered, or be threatened with, an actual injury traceable to the defendant and likely
to be redressed by a favorable judicial decision.'" Id. (quoting, Spencer v. Kemna, 523 U.S. I,
7 (1998)).
In criminal matters, as the Court further explained, "this requirement means that a

Alshalabi is a citizen of Yemen, entered this country in 1991 on a tourist visa, and later
acquired permanent resident status. Alshalabi likely faces deportation as a result of his drug
conviction and reports that on or about August 4, 2011, he was taken into custody by
immigration officials.
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defendant wishing to continue his appeals after the expiration of his sentence must suffer some
"continuing injury" or "collateral consequence" sufficient to satisfy Article III," and "[w]hen the
defendant challenges his underlying conviction, this Court's cases have long presumed the
existence of collateral consequences." Id. Nevertheless, "when a defendant challenges only an
expired sentence, no such presumption applies, and the defendant must bear the burden of
identifying some ongoing collateral consequence that is traceable to the challenged portion of the
sentence and likely to be redressed by a favorable judicial decision." Id. Accord United States
v. Hamdi, 432 F.3d 115 (2d Cir. 2005) (habeas petitioner's "challenge to the length of his
completed sentence will not satisfy the justiciability requirement of Article III unless prevailing
on [that challenge] would relieve him of some concrete and identifiable collateral effect of that
sentence").
As noted, Alshalabi has challenged only the custodial portion of his sentence and not his
term of supervised release, and has not himself sought to identify any consequence "traceable to
the challenged portion of his sentence and likely to be redressed by a favorable decision."
Juvenile Male, 131 S. Ct at 2864. 3 The Court briefly considers, however, whether the supervised
release component of Alshalabi' s sentence may present circumstances that qualify as the
required "ongoing collateral consequence." A series of Second Circuit decisions have explored
the question.
In United States v. Blackburn, 461 F.3d 259 (2d Cir. 2006), cert. denied, 550 IIS/ 969
(2007), the Circuit observed that other circuits "ha[ d] held that a challenge to a sentence by a
criminal defendant who has completed his prison term but remains subject to supervised release

3 The possibility of deportation is not such a consequence, of course, because it is
Alshalabi's drug conviction, and not the length of his sentence, that affects removability. See
generally 8 U.S.C. § 1227.

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is not moot" where "there possibility of the district court's reducing the term of supervised
release on remand gives the defendant-appellant a continuing stake in the outcome." 461 F.3d at
262. In the case before it, the Blackburn Court concluded that that possibility was "remote and
speculative" and declared the appeal moot. Id. A year later, in United States v. Williams, 475
F.3d 468 (2d Cir 2007), cert. denied, 552 U.S. 1105 (2008), the Court concluded that an
appellate sentencing challenge was rendered moot upon the defendant's release from prison
because he had received the statutory minimum term of supervised release for the crime to which
he pled guilty, which meant that there was "no possibility that the district court could impose a
reduced term of supervised release [upon a] remand for resentencing." 475 F.3d at 479.
Under these authorities, the Court concludes that Alshalabi's challenge to the custodial
portion of his sentence was rendered moot upon his release from prison. Like the defendant in
Williams, Alshalabi received the three-year statutory minimum term of supervised release for the
crime to which he pled guilty. See 21 U.S.c. §841(b)(I)(C). Thus, even if this Court were to
rule favorably on the merits of Alshalabi's challenge to the custodial portion of his sentence,
there is no possibility that it could reduce the term of supervised release or otherwise "relieve
[Alshalabi] of some concrete and identifiable collateral effect of [his] sentence." Hamdi, 432
F.3d at 118. See also Gomez-Vargas v. United States, 2009 WL 1024241, *3 (S.D.N.Y. Apr. 15,
2009) ("even ifthe instant [section 2255] petition were to be interpreted to challenge the length
of [p]etitioner's supervised release in addition to imprisonment, that challenge likewise is moot
[because] [the prisoner] was sentenced to the statutory minimum [term of] supervised release ...
. thus, even if the Court were to re-sentence [him], it would be unable to impose a lesser term of
supervised release than that already imposed") (collecting additional authorities).
In sum, the Court concludes that the application for relief under section 2255 must be

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dismissed as moot.

B.

Waiver
Even if Alshalabi' s section 2255 motion presented a justiciable controversy, this

proceeding is nevertheless barred by the waiver of post-conviction rights contained in
Alshalabi's plea agreement.
Under established Second Circuit law, a defendant's waiver, as part of a written plea
agreement, of his right to appeal or collaterally challenge a sentence within an agreed upon
guideline range is enforceable, provided the waiver and plea were knowing and voluntary.
Garcia-Santos v. United States, 273 F.3d 506,508-09 (2d Cir. 2001) (per curiam); United States
v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.), cert. denied, 509 U.S. 931 (1993); United States
v. Pearson, 570 F.3d 480,485 (2d Cir. 2009). As the Second Circuit has explained, "[i]n no
circumstance ... maya defendant, who has secured the benefits of a plea agreement and
knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of
a sentence conforming to the agreement" because "[ s]uch a remedy would render the plea
bargaining process and the resulting agreement meaningless." Salcido-Contreras, 990 F.2d at 53.
Alshalabi was sentenced well below the ceiling of 121 months set forth in his plea
agreement, and he is not even challenging the validity of that agreement in this proceeding.
Additionally, this Court has already determined, both at the time Alshalabi pled and again, when
Alshalabi moved to vacate his plea, that Alshalabi' s decision to enter into a plea agreement with
the government was made knowingly and voluntarily, and the Second Circuit has affirmed those
findings without qualification. Alshalabi, 253 Fed. Appx. at 67. The waiver of post-conviction
rights in that plea agreement, therefore, is binding on Alshalabi and bars this proceeding. See,
~,Salcido-Contreras,

990 F.3d at 53 (dismissing as barred the appeal ofa sentence within the

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range agreed upon in the appellate rights waiver); Garcia-Santos, 273 F.3d at 507-09 (same, in
section 2255 context).

C.

Procedural Default
Even if Alshalabi's claim was justiciable and not barred by the waiver in his plea

agreement, it would be procedurally barred because Alshalabi appealed but did not raise in that
appeal the disparate sentencing claim he seeks to pursue here. It is well established that claims
that could have been raised on direct appeal but were not are deemed procedurally defaulted in a
subsequent 2255 proceeding. Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007). Such a
claim may be raised only in a section 2255 proceeding only upon a showing of cause for the
default and resulting actual prejudice, or actual innocence. Bousley v. United States, 523 U.S.
614,622 (1998) (internal quotations omitted); Coleman v. Thompson, 501 U.S. 722, 748-50
(1991); Murray v. Carrier, 477 U.S. 478,496 (1986).
The fact that Alshalabi's plea agreement contains a waiver of appellate rights does not
constitute cause to excuse his failure to raise his disparate sentencing claim on the appeal that he
did take. First, waivers of appellate rights are not enforced in appeals, such as Alshalabi's, that
challenge the process by which the waiver was obtained. United States v. Hernandez, 242 F.3d
110, 113-14 (2d Cir. 2001). Second, even if the appellate waiver had barred Alshalabi's appeal,
the Circuit has squarely held that the waiver of direct appeal rights in a plea agreement cannot be
considered "cause" to excuse a defaulted 2255 claim. Garcia-Santos, 273 F.3d at 508.
Likewise, Alshalabi has no colorable claim of "actual innocence" sufficient to excuse the
default. See Alshalabi, 253 Fed. Appx. at 67 ("Alashabi's claim of innocence is belied by the
unequivocal statements he made on the record concerning his guilt").

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D.

Disparate Sentencing Claim not Cognizable on 2255
Assuming arguendo that Alshalabi's habeas claim (i) was not moot, (ii) not barred by the

waiver in Alshalabi' s plea agreement, and (iii) not procedurally defaulted, he would nevertheless
not be entitled to habeas relief. Section 2255 authorizes a federal prisoner to move the Court that
sentenced him to vacate or set aside that sentence solely "upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose [it], 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. Relief is limited to
circumstances in which there was a genuine "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 a complete miscarriage of justice." Cuoco v. United States, 208 F.3d 37,30 (2d Cir.
2000) (internal quotations omitted).
Alshalabi's disparate sentencing claim does not meet these standards. To be sure, title 18
U.S.c. § 3553(a) directs a sentencing court to consider "the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar
conduct." 18 U.S.c. § 3553(a)(6). But the Second Circuit has unequivocally "held that section
3553(a)(6) requires a court to consider nationwide sentence disparities but does not require a
district court to consider disparities among co-defendants." United States v. Frias, 521 F.3d 229,
236 (2d Cir.), cert. denied, 555 U.S. 922 (2008) (emphasis added). See also Ceballos v. United
States, 09 CV 5035 (FB), 2010 WL 3189907, *2 (E.D.N.Y. Aug. 9, 2010) (disparate sentence
claim barred by plea agreement's wavier of appellate rights and summarily dismissed without
attention to the merits).

In short, the difference between Alshalabi's sentence and those of his

Kentucky co-conspirators does not present a claim cognizable on section 2255. In any event,

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Alshalabi plainly overlooks the fact that this Court did consider his role in the conspiracy when it
granted him a two-level "minor role" downward adjustment.

CONCLUSION

Alshalabi's application for relief under 28 U.S.c. § 2255 does not present a justiciable
controversy within the meaning of Article III, Section 2 of the United States Constitution and
must be dismissed as moot. Even if the Court could entertain the application for relief under
Section 2255 it would still dismiss the proceeding as barred by the waiver of post-conviction
rights in Alshalabi' s written plea agreement. Because Alshalabi has not made "a substantial
showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), a certificate of
appealability will not issue. The Clerk of the Court is directed to close this case.
SO ORDERED.

Dated: BrooklYI}I New York
MarchL 2012

s/ Judge Raymond J. Dearie
·RJYY~EARIE
United

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ates Dlstnct Judge