Saleem v. Garman

Filing 4

MEMORANDUM Based on the foregoing, the Court lacks jurisdiction to consider Saleem's petition. Therefore, the petition will be dismissed. Notably, dismissal will be without prejudice to Saleem's ability to take any action he deems appropriate under 28 U.S.C. § 2254.A separate order shall issue.Signed by Honorable Robert D. Mariani on 6/28/17. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Civil NO.3: 17-cv-1 043

MOHAMMAD SOHAIL SALEEM,
Petitioner

(Judge Mariani)

v.
MARK GARMAN, SUPERINTENDENT
STATE CORRECTIONAL INSTITUTION
AT ROCKVIEW,
Respondent
MEMORANDUM

Presently before the Court is a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 filed by Petitioner, Mohammad Sohail Saleem ("Saleem"), an inmate

confined at the State Correctional Institution Rockview, in Bellefonte Pennsylvania. (Doc.
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1). Saleem challenges his gully plea and sentence imposed by the Court of Common Pleas
of Lebanon County. (Id.). Preliminary review of the petition has been undertaken, see R.
GOVERNING § 2254 CASES R.4,1 and, for the reasons set forth below, the petition will be
dismissed for lack of jurisdiction.

I.

Background

In 2014, Saleem was charged with various sexually-related offenses in the Court of

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Rule 4 provides, "[ilf it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk
to notify the petitioner." See R. GOVERNING § 2254 CASES R.4. These rules are applicable to petitions
under 28 U.S.C. § 2241 in the discretion of the court. Id. at R.1 (b).

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Common Pleas of Lebanon County. See Commonwealth v. Saleem,

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CP-38-CR-0001112-2014, CP-38-CR-0000565-2014 (Lebanon County Ct. Com. Pl.). On
April 21, 2015, Saleem pled guilty to indecent assault and harassment involving two victims
who were employees of a small business owned by Saleem. Commonwealth v. Saleem,
2017 WL 1223851, *1 (Pa. Super.). The trial court ordered an assessment to determine
whether Saleem was a sexually violent predator pursuant to 42 PA.C.S.A. § 9792. ld.
Saleem was subsequently found to be a sexually violent predator. ld. On June 3, 2015, a
sentencing hearing was held. ld. At sentencing, following a discussion regarding possible
deportation proceedings, the trial court sentenced Saleem to an aggregate prison term of 21
months to 10 years. ld. Saleem thereafter filed two post-sentence motions claiming
ineffective assistance of counsel, which the trial court denied without prejudice to Saleem
seeking relief under the PCRA2. Id.
On September 1,2015, Saleem filed a counseled PCRA petition regarding the
voluntariness of his plea. Commonwealth v. Saleem, 2017 WL 1223851, *7 (Pa. Super.).
Saleem argued that his plea was predicated upon a promise that he would be deported to
Pakistan. Id. When Saleem was not deported, he argued that he was deprived of the
benefit of his plea bargain. Id. Saleem 'further argued that his guilty plea counsel was
ineffective for leading him to believe that deportation would occur. Id. The PCRA court held

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Post Conviction Relief Act ("PCRA"). 42 PA. CONS. STAT. §§ 954146.

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a hearing and ultimately denied the PCRA petition, finding that immediate deportation was

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not a part of the plea agreement. Id. at *7-8. Rather, as part of the plea agreement, the
District Attorney's office agreed that it would have no objection to deportation and would not
take any action to prevent deportation. Id. at *8. The PCRA court further noted that
Saleem's attorney communicated to him that there was no guarantee that he would be
deported. Id. Specifically, Saleem's attorney wrote a letter to him explaining that, 'There is
no way to determine how much of your sentence you will have to serve before you are
deported. It is possible that you would have to serve your entire sentence, possibly 50
years or more, before, you are deported." Id.
Saleem filed an appeal to the Pennsylvania Superior Court. Commonwealth v.
Saleem, 2017 WL 1223851 (Pa. Super.). On March 28, 2017, the Pennsylvania Superior
Court affirmed the dismissal of the PCRA petition. Id. Saleem did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court.
On June 14, 2017, Saleem filed the instant federal petition attacking the his state
court guilty plea and sentence. (Doc. 1). He argues that the terms of his plea agreement
were breached because he was not immediately deported, and he sets forth claims of
ineffective assistance of counsel and a Brady claim. (Id. at pp. 6-8). For relief, Saleem

Brady v. Mary/and, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that "the
suppression by the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment").
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requests that the Court vacate his sentence and order his immediate release from

confinement. (ld. at p. 8).
II.

Discussion

Section 2241 authorizes district courts to issue a writ of habeas corpus to astate or
federal prisoner who "is in custody in violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2241 (c)(3). Section 2254 is more specific and confers
jurisdiction on district courts to "entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United States." 28
U.S.C. § 2254(a). "[A] state prisoner challenging the validity or execution of his state court
sentence must rely on the more specific provisions of § 2254 rather than § 2241."
Washington v. Sabina, 509 F.3d 613, 619 n.5 (3d Cir. 3007) (citing Coady v. Vaughn, 251
F.3d 480,485 (3d Cir. 2001)).
In the instant petition, Saleem seeks relief via section 2241. Saleem challenges his
guilty plea and sentence, and sets forth claims of ineffective assistance of counsel and trial
court errors. Saleem's reliance on section 2241 is misplaced and he must proceed under
section 2254 because he is challenging his state sentence. See Felker v. Turpin, 518 U.S.
651,662, 116 S.Ct. 2333, 135 L.Ed.2d 827 ("authority to grant habeas corpus relief to state
prisoners is limited by 28 U.S.C. § 2254, which specifies the conditions under which such

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relief may be granted to a person in custody pursuant to the judgment of a state court");
DeVaughn v. Dodrill, 145 F. App'x 392,394 (3d Cir. 2005) (per curiam) ("A prisoner

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challenging either the validity or execution of his state court sentence must rely on the more
speci'flc provisions of § 2254 and may not proceed under § 2241."); Coady, 251 F.3d at 485
("[W]e hold that Coady must rely on Section 2254 in challenging the execution of his

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sentence."). Additionally, section 2241 is not an alternative to section 2254. Section 2254
contains aone-year statute of limitation regarding the timely filing of a petition, and
"Congress has restricted the availability of second and successive petitions through Section
2244(b)." Coady, 251 F.3d at 484. Allowing a petitioner to proceed under section 2241
would circumvent these restrictions and thwart Congressional intent. Id. at 484-85.
Accordingly, this Court lacks jurisdiction to consider the petition pursuant to section 2241.
III.

Conclusion

Based on the foregoing, the Court lacks jurisdiction to consider Saleem's petition.
Therefore, the petition will be dismissed. Notably, dismissal will be without prejudice to
Saleem's ability to take any action he deems appropriate under 28 U.S.C. § 2254.
A separate order shall issue.

Date: JUned&i,2017

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