Hasanoff v. USA

Filing 20

OPINION AND ORDER. Although Petitioner's motion to amend his initial petition for habeas relief under 28 U.S.C. § 2241 is GRANTED, the amended petition is DISMISSED for lack of jurisdiction. The petition for a writ of audita querela is DENIED. The petition for a writ of coram nobis is DENIED. So ordered. (Signed by Judge Kimba M. Wood on 2/11/2020) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _ _ _ _ _ __ _
DATE FILED: d\ f I l { ~ 'D

UNITED STATES OF AMERICA,
10-CR-162 (KMW)
-against-

14-CV-7892 (KMW)
OPINION & ORDER

SABIRHAN HASANOFF,
Defendant.

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KIMBA M. WOOD, United States District Judge:
Sabirhan Hasanoff ("Petitioner") petitions prose for habeas relief pursuant to 28 U.S.C.
§ 2241, and, in the alternative, petitions for a writ of audita querela, based on the sentencing
court' s allegedly improper application of Section 3Al .4 of the United States Sentencing
Guidelines, and his attorney ' s allegedly ineffective performance.
In a separate filing, also now before the Court, Petitioner requests to "supplement" his
initial § 2255 petition with a petition for a writ of coram nobis, as a further alternative, based on
the same grounds.
Petitioner' s motion to amend is granted.

However, it is plain from the face of

Petitioner' s amended application that he is not entitled to relief; thus, Petitioner's petition for
habeas relief under § 2241 is summarily dismissed for lack of jurisdiction, and his petitions for
writs of audita querela and coram nobis are both summarily denied.
BACKGROUND
On March 2, 2010, a Grand Jury returned a sealed indictment charging Petitioner and
Wesam El-Hanafi with one count of conspiracy to provide material support to a foreign terrorist

organization, namely Al Qaeda.

(ECF No. 6. 1)

A Superseding Indictment was filed on

September 14, 2010, charging the same defendants in four counts.

(ECF No. 26.)

On June 4, 2012, Petitioner pled guilty to a two-count Superseding Information charging
him with (1) providing and attempting to provide material support and resources to al Qaeda, in
violation of 18 U.S.C . § 2339B, and (2) conspiring to provide material support and resources to
al Qaeda, in violation of 18 U.S.C . § 371.

(ECF Nos. 102, 106.)

In his plea agreement,

Petitioner stipulated to a United States Sentencing Guidelines ("Guidelines") offense level of 3 7,
which included a 12-level enhancement, pursuant to U.S.S.G. § 3Al .4(a), for felonies involving,
or intended to promote, a federal crime of terrorism.

(ECF No. 237 at 13.)

This Court agreed

with the stipulated Guidelines calculation, and noted that Petitioner's resulting Guidelines range
was far in excess of the twenty-year statutory maximum for the offenses to which he pled guilty.
(Civil ECF No. 1 at 41.)

The Court sentenced Petitioner to 216 months' imprisonment.

(Id. at

43-44.)
On September 30, 2014, Petitioner filed a petition to set aside, vacate, or correct his
sentence pursuant to 28 U.S.C. § 2255, based on the allegedly ineffective performance of his
defense attorney .
November 3, 2016.

(Civil ECF No. 1.)

This Court denied his petition in a sealed order on

(Civil ECF No. 17.)

Petitioner moved for a certificate of appealability

from the Second Circuit, and the Second Circuit denied his motion on June 12, 2017.

(Civil

ECFNo. 19.)
On October 27, 2019, Petitioner submitted the instant petition for habeas relief under 28
U.S .C. § 2241, or, in the alternative, for a writ of audita querela pursuant to 28 U.S.C. § 1651.

1

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2

(ECF No. 237.)

On October 29, 2019, Petitioner submitted a request to "supplement" his initial

petition with a request that the Court consider his initial petition, in the alternative, as a petition
for a writ of coram nobis .

(ECF No. 238.) 2

LEGAL STANDARD
"A federal court presented with a petition for a writ of habeas corpus 'shall forthwith
award the writ or issue an order directing the respondent to show cause why the writ should not
be granted, unless it appears from the application that the applicant or person detained is not
entitled thereto ."'

Cephas v. Nash, 328 F.3d 98, 103 (2d Cir. 2003) (quoting 28 U.S.C . § 2243).

"Implicit in this directive is the power to dismiss a habeas petition when it is patently apparent
that the court lacks jurisdiction to grant the relief demanded."

Id.

These same standards apply

to petitions for common law writs of audita querela or coram nobis, at least insofar as those writs
are sought, in lieu of a statutory writ of habeas corpus, to challenge the validity of a prisoner's
detention.

See Fleming v. United States, 146 F.3d 88, 90 n.2 (2d Cir. 1998) ("Because of the

similarities between coram nobis proceedings and § 2255 proceedings, the § 2255 procedure
often is applied by analogy in coram nobis cases."); see also Medina v. United States, 2012 WL
742076 (S.D .N.Y. 2012) (Oetken, J.) (dismissing petition for writ of coram nobis, sua sponte,
where it is plain relief cannot be granted).

DISCUSSION
Petitioner claims this Court should not have applied the 12-level enhancement to his
offense level under U.S.S.G. § 3Al .4(a) because the Sentencing Commission developed that
provision in violation of a clear Congressional directive.

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The initial motion was docketed on November 5, 2019.

20191
3

(Petitioner's Motion ("Pet. Mot.") at

The "supplement" was docketed on November 21 ,

6- 8.)

Petitioner also claims his counsel was ineffective for failing to raise this argument at

sentencing or in his § 2255 proceedings.

(Id. at 2-3.)

Petitioner claims he can properly bring

these claims as a petition for habeas relief under 28 U.S.C. § 2241, or, alternatively, in a petition
for a writ of audita querela.

In his supplemental filing, he asks the Court to grant him, as a

further alternative, a writ of coram nobis.

(ECF No. 238 .)

The Court considers each

application in turn.
I.

Petition for Habeas Relief Under 28 U.S.C. § 2241
"A challenge to the execution of a sentence-in contrast to the imposition of a

Levine v. Apker, 455 F.3d 71 , 78 (2d Cir.

sentence-is properly filed pursuant to§ 2241."
2006).

"Execution of a sentence includes matters such as ' the administration of parole,

computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison
transfers, type of detention and prison conditions."'
144, 146 (2d Cir. 2001)).

Id. (quoting Jiminian v. Nash , 245 F.3d

"Section 2255 , on the other hand, is the proper vehicle when the

federal prisoner seeks ' to challenge the legality of the imposition of a sentence by a court."'

Pointdexter v. Nash, 333 F.3d 372,377 (2d Cir. 2003) (quoting Chambers v. United States, 106
F.3d 472,474 (2d Cir. 2003)).
Despite this delineation between§ 2241 and§ 2255 , " [i]n some very limited
circumstances, claims that fall within the substantive scope of§ 2255 may properly be made in a
petition filed under§ 2241."

Id. at 378. This exception applies where§ 2255 is "inadequate

or ineffective to test the legality of [the prisoner' s] detention," 28 U.S.C. § 2255(e), such as
where relief under § 2255 is procedurally unavailable yet denying a prisoner the opportunity for
collateral review would "raise serious constitutional questions. "
124 F.3d 361 , 377 (2d Cir. 1997).

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Triestman v. United States,

Relief under§ 2255 commonly becomes procedurally unavailable when a prisoner' s
§ 2255 petition has been denied on its merits, and he does not obtain certification from the court
of appeals to file a second or successive § 2255 petition, which certification is required by the
Antiterrorism and Effective Death Penalty Act ("AEDPA").3

See 28 U.S.C. § 2255(h); see

Nelson v. United States, 115 F3d 136, 136 (2d Cir. 1997) (district court lacks jurisdiction over
successive § 2255 petitions unless certification is obtained). Nonetheless, § 2255 "is not
inadequate or ineffective, such that a federal prisoner may file a § 2241 (c)(3) petition, simply
because a petitioner cannot meet the AEDPA' s gate-keeping requirements, provided that the
claim the prisoner seeks to raise was previously available on direct appeal or in a prior§ 2255
motion."

Jiminian, 245 F.3d at 147-48.

Petitioner's claims plainly fall within the substantive scope of§ 2255 .

His complaints

that U.S.S.G. § 3Al .4(a) should not have been applied to his sentence, and that his lawyer was
ineffective for failing to make this argument, address the manner in which his sentence was
imposed, rather than the manner in which it was executed.
Thus, his claims may be brought only under§ 2255, unless the above-described exception
permits them to be brought under § 2241.
The exception does not apply here because Petitioner has already had a§ 2255 petition
denied on its merits, and his instant claims were available to him on direct appeal and when he
made the initial § 2255 petition.

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Although he asserts that developing these claims would require

AEDPA requires prisoners who wish to make a second or successive § 2255 petition to demonstrate to the
Court of Appeals that their claim is based on " (l) newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. §

ZZ55(h); ~66 at~o ict. ~ ZZ44,
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extensive legal research, Petitioner does not argue that the claims are based on any rule of law or
factual predicate that was previously unavailable to him.

Petitioner does not seem to have even

attempted to obtain certification to bring a second § 2255 petition.

But even if, as Petitioner

seems to concede, he cannot obtain certification, he still cannot bring his claim under § 2241.

See Jiminian , 245 F.3d at 147-48.
When presented with a § 2241 petition that is improper for this reason, "the district court
can treat the § 2241 petition as a second or successive § 2255 petition and refer the petition to
[the court of appeals] for certification, or, if it is plain from the petition that the prisoner cannot
demonstrate that a remedy under§ 2255 would be inadequate or ineffective to test the legality of
his detention, the district court may dismiss the § 2241 petition for lack of jurisdiction."

Adams

v. United States, 372 F.3d 132, 136 (2d Cir. 2004) (citation omitted).
The Court follows the latter course of action.

The Second Circuit has recognized only

one situation where a petitioner, procedurally barred from § 2255 relief, may nevertheless
advance a claim under § 2241: "cases involving prisoners who ( 1) can prove 'actual innocence on
the existing record,' and (2) 'could not have effectively raised [their] claim[s] of innocence at an
earlier time."'

Cephas, 328 F.3d at 104 (quoting Triestman, 124 F.3d at 363)).

Petitioner' s

claim, which does not assert actual innocence at all, plainly fails to meet either requirement.
The Court sees no reason why barring Petitioner from pursuing his claim further would otherwise
raise "serious constitutional questions. "

Accordingly, Petitioner's petition for relief under

§ 2241 is dismissed for lack of jurisdiction.

II.

Petitions for Writs of Audita Querela and Coram Nobis

Petitioner alternatively petitions for a writ of audita querela pursuant to the All Writs
Act, 28 U .S.C. § 1651.

Petitioner also requests, in a supplemental filing, that the Court grant

him 11 writ of coram nobis, on thu samu grounds, and undur thu Bflffiu Btatutory authority.
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The Court interprets Petitioner's supplemental filing as a motion to amend his initial
petition for habeas relief.

This motion is governed by the liberal amendment standards set out

in Federal Rule of Civil Procedure 15, and it is granted.

See Littlejohn v. Artuz, 271 F.3d 360,

363 (2d Cir. 2001); see also Fed. R. Civ. P. 15(a) (leave to amend should be freely granted).
That said, Petitioner is entitled to neither a writ of audita querela nor a writ of coram

nobis.

The Second Circuit acknowledged in Triestman that these common law remedies might

be available if "their existence were necessary to avoid serous questions as to the constitutional
validity of both§ 2255 and§ 2244-if, for example, an actually innocent prisoner were barred
from making a previously unavailable claim under§ 2241 as well as§ 2255."
F.3d at 380 n.24.

Triestman, 124

But, because § 2255 provides Petitioner an adequate remedy, and Petitioner

does not claim he is actually innocent or make any previously unavailable arguments, that
situation is not before the court.

See id.

Thus, the petitions for writs of audita querela and

coram nobis are denied.
CONCLUSION
Although Petitioner' s motion to amend his initial petition for habeas relief under 28
U.S.C. § 2241 is GRANTED, the amended petition is DISMISSED for lack of jurisdiction.
petition for a writ of audita querela is DENIED.

The petition for a writ of coram nobis is

DENIED.

SO ORDERED.
Dated: New York, New York
February JL, 2020
KIMBA M. WOOD
United States District Judge

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