Shah v. United States Of America
Filing
4
OPINION AND ORDER adopting 3 Memorandum and Recommendation; overruling Petitioner's objections; denying Sec. 2255 motion; denying as moot motion to expedite; denying certificate of appealability. (Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA,
Respondent/Plaintiff,
VS.
SYED MAAZ SHAH,
Petitioner/Defendant.
§
§
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§
§
§
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§
§
§
CRIMINAL NO. H-06-428
CIVIL ACTION H-10-3796
OPINION AND ORDER
Pending before the Court in the above referenced cause
following matters:
are
(1) Petitioner Syed Maaz Shah’s (“Shah’s”) §
2255 motion to vacate, set aside or correct sentence because of
ineffective
assistance
of
counsel
at
trial
and
on
appeal1
(instrument #129 and 142 in H-06-CR-428 and #1 in H-10-CV-3796);
(2) United States Magistrate Judge Frances Stacy’s memorandum and
recommendation (#143 in H-06-CR-428) that the motion be denied; (3)
Shah’s statement of objections (#144, 148 in H-06-CR-428); and (4)
Shah’s motion to expedite determination of § 2255 petition (#149 in
H-06-CR-428).
Shah filed his motion to vacate pro se, but subsequently
obtained counsel, Mr. Robert J. Boyle, for the preparation of
Shah’s statement of objections (#144) and supporting memorandum to
1
Shah’s trial and appellate counsel was Frank Hardin Jackson.
-1-
his § 2255 motion (#148).
A pro se complaint is “held to less
stringent standards than formal pleadings drafted by lawyers.”
Estelle v. Gamble, 429
U.S. 519, 521 (1972).
U.S. 97, 106 (1976); Haines v. Kerner, 404
Pro se pleadings are liberally construed.
Haines, 404 U.S. at 521.
provide
sufficient
facts
Nevertheless pro se litigants must
in
support
of
their
claims;
“mere
conclusory allegations on a critical issue are insufficient to
raise a constitutional issue.”
22, 23 (5th Cir. 1993).
United States v. Pineda, 988 F.2d
“Absent evidence in the record, a court
cannot consider a habeas petitioner’s bald assertions on a critical
issue
in
his
pro
se
petition
(in
state
and
federal
court),
unsupported and unsupportable by anything else contained in the
record, to be of probative evidentiary value.”
Ross v. Estelle,
694 F.2d 1009, 1011 (5th Cir. 1983); see also U.S. v. Onwuasoanya,
180 F.3d 261 (Table), No. 96-20877, 1999 WL
Apr. 16, 1999).
274479, *2 (5th Cir.
“[A] district court does not commit error when it
disposes of a habeas petitioner’s claims without holding a fullfledged hearing when those claims are unmeritorious, conclusory,
and wholly unsupported by the record.”
Id. at 1011 n.2; id.
Here,
because Mr. Boyle stepped in to represent Shah in filing his
memorandum in support of his motion and subsequent submissions,
there is no issue of pro se status in pleadings.
Standard of Review
Once a defendant has been convicted and has exhausted or
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waived his right to appeal, a Court may presume that he “stands
fairly and finally convicted.”
592, 595 (5th Cir. 2001).
United States v. Willis, 273 F.3d
Therefore relief under § 2255 is limited
to “transgressions of constitutional rights and for a narrow range
of injuries that could not have been raised on direct appeal and
would, if condoned, result in a complete miscarriage of justice.”
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996).
Usually
when raising issues of jurisdictional or constitutional magnitude
for the first time on collateral review a petitioner must show both
cause for his procedural default and actual prejudice resulting
from the error.
Id. A claim of ineffective assistance of counsel,
however, satisfies the cause and prejudice standard.
Id.
Objections timely filed within fourteen days of entry of the
United States magistrate judge’s memorandum and recommendation must
specifically identify the findings or recommendations for which the
party seeks reconsideration.
Byars v. Stephens, No. 5:13-CV-189-
DAE, 2014 WL 1668488, at *2 (Apr. 14, 2014), citing Thomas v. Arn,
474 U.S. 140, 151 (1985).
The court does not have to consider
“‘[frivolous, conclusive, or general objections.’”
Id., citing
Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
Findings by the magistrate judge to which the party specifically
objects
must
636(b)(1)(C).
Findings
be
reviewed
de
novo
under
28
U.S.C.
§
See Wilson, 492 U.S. at 1221.
of
the
magistrate
-3-
judge
to
which
no
specific
objections are made require the Court only to decide whether the
memorandum and recommendation is clearly erroneous or contrary to
law.
Id., citing U.S. v. Wilson, 864 F.2d 1219, 1221 (5th Cir.
1989). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate
judge.”
28 U.S.C. § 636(b)(1)(C).
Applicable Law
Ineffective assistance of counsel under the Sixth Amendment is
a recognized basis for invalidating a conviction. United States v.
Urias-Marrufo, 744 F.3d 362, 365 (5 th Cir. 2014).
An ineffective
assistance of counsel claim under the Sixth Amendment is a mixed
question of law and fact.
698 (1984).
Strickland v. Washington, 466 U.S. 668,
To prevail on a claim of ineffective assistance of
counsel, a petitioner must show by a preponderance of the evidence
that (1) counsel's performance was deficient, i.e., that counsel
made errors so serious that he or she was not functioning as
"counsel" guaranteed by the Sixth Amendment and fell below an
objective standard of reasonableness, and (2) that the defense was
prejudiced by that deficient performance, i.e., that there is a
reasonable
probability
that
but
for
counsel's
unprofessional
errors, the result of the proceeding would have been different and
the petitioner was thus deprived of a fundamentally fair trial and
reliable outcome.
Id. at 694; Lockhart v. Fretwell, 506 U.S. 364,
369 (1993); U.S. v. Wines, 691 F.3d 599, 611 (5th Cir. 2012), cert.
denied, 133 S. Ct. 892 (5th Cir. 2013).
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The likelihood of a
different result must be substantial, not merely conceivable:
“Counsel’s errors must be ‘so serious as to deprive the defendant
of a fair trial, whose result is reliable.’”
Harrington v.
Richter, 526 U.S. 86, 104 (2011), citing Strickland, 466 U.S. at
687.
The court may examine either prong first and if it is found
to be dispositive, it is not necessary to address the other.
United States v. Webster, 392 F.3d 787, 794 & n.12 (5th Cir. 2014),
citing Buxton v. Lynaugh, 879 F.2d 140, 142 (5th Cir. 1989).
“Judicial scrutiny of counsel's performance must be highly
deferential," making every effort to "eliminate the distorting
effects of hindsight," and there is a strong presumption that
strategic
or
investigation
tactical
lie
within
reasonable performance.
decisions
the
wide
Strickland,
made
range
after
of
an
an
adequate
objectively
466 U.S. at 689.
“‘A
conscious and informed decision of trial tactics and strategy
cannot be the basis for constitutionally ineffective assistance of
counsel unless it is so ill chosen that it permeates the entire
trial with obvious unfairness.’” United States v. Holmes, 406 F.3d
337, 360 (5th Cir. 2005), quoting Cotton v. Cockrell, 343 F.3d 746,
752-53 (5th Cir. 2003).
“We will not find inadequate representation
merely because, with the benefit of hindsight, we disagree with
counsel’s strategic choices.”
Kitchens v. Johnson, 190 F.3d 698,
701 (5th Cir. 1999), quoting Green v. Johnson, 116 F.3d 1115, 1122
(5th Cir. 1997).
Under the Sixth Amendment, applicable to the States under the
Fourteenth
Amendment, convicted persons are also entitled to
-5-
effective assistance of counsel on first appeal as of right.
Cuyler v. Sullivan, 446 U.S. 333 (1980);
Evitts v. Lucey, 469 U.S.
387 (1985); Douglas v. California , 372 U.S. 353, 356-57 (1963);
U.S. v. Merida, 985 F.2d 198, 202 (5th Cir. 1993).2
In Baldwin v. Maggio, 704 F.2d 1325, 1329 (5
th
Cir. 1993),
cert. denied, 467 U.S. 1220 (1984), the Fifth Circuit opined,
Constitutionally effective assistance of counsel under
Strickland is “not errorless counsel and not counsel
judged ineffective by hindsight. . . . Herring v.
Estelle, 491 F.2d 125, 127 (5th Cir. 1974). The
determination of whether counsel has rendered reasonably
effective assistance turns in each case on the totality
of facts in the entire record.
See Washington v.
Estelle, 648 F.2d 276 (5th Cir.) cert. denied, 454 U.S.
955 . . . (1978) . . . . Thus, we must consider a
counsel’s performance in light of “the number, nature,
and seriousness of the charges . . . the strength of the
prosecution’s case and the strength and complexity of the
defendant’s possible defenses.” Washington v. Watkins,
655 F.2d 1346, 1357 (5th Cir. 1981), cert. denied, 456
U.S. 949 . . . (1982).
Furthermore to establish prejudice under the second prong of
Strickland the petitioner must demonstrate that his counsel’s
errors were so serious that they rendered the trial’s result
2
The Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A,
provides that an attorney must be appointed for a financially
eligible person in criminal proceedings “from his initial
appearance . . . through appeal, including ancillary matters
appropriate to the proceedings,” or who “is entitled to appointment
of counsel under the sixth amendment to the Constitution,”
§
3006(a)(1)(H), (c). Adelke v. United States, 550 Fed. Appx. 237,
239 (5th Cir. 2013). Postconviction proceedings do not qualify as
“ancillary proceedings under § 3006A, and there is no
constitutional right to counsel in postconviction proceedings. Id.
A court may appoint counsel “for any financially eligible person
who . . . is seeking relief” under 28 U.S.C. § 2255 if it
“determines that the interests of justice so require.” Id., citing
CJA, 18 U.S.C. § 3006(A).
-6-
unreliable or the proceeding fundamentally unfair.
United States
v. Bernard, 762 F.3d 467, 471 (5th Cir. 2014), citing Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993).
Conclusory allegations of ineffective assistance of counsel do
not raise a constitutional question in a federal habeas petition.
Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. Jan. 5, 2000),
citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983), and
Barnard v. Collins, 958 F.2d 634, 642 (5th Cir. 1992).
Summary of the Procedural History3
Shah, a native of Pakistan legally in the United States on a
non-immigrant student visa, was enrolled as an engineering student
at the University of Texas at Dallas when he was arrested at the
age of 19 on November 28, 2006.
As described in greater detail in
the Magistrate Judge’s memorandum and recommendation, on April 11,
2007 in a superseding indictment (#30), Shah was charged in counts
one and two with possession of a firearm by an illegal alien in
violation of 8 U.S.C. §§ 922(g)(5)(A) and 924(a)(2), and in counts
three and four, with possession of a firearm by an alien admitted
to the United States under a non-immigrant student visa, arising
out of his alleged possession of a firearm during camping trips in
January
2006
and
March
2006,
in
violation
of
8
U.S.C.
§
922(g)(5)(B) and 924(a)(2).
3
For a more detailed history,
memorandum and recommendation (#143).
-7-
see
Magistrate
Judge’s
At trial Shah presented a defense of entrapment, arguing that
an undercover law enforcement officer, “Malik Mohammed,” induced
him to possess and handle weapons during two camping trips and told
Shah that his possession of firearms on private lands during the
January 2006 trip was legal.
On May 24, 2007, after evidence
showed that Shah had possessed an Armalite model M-15A4 semiautomatic rifle during two combat training sessions at a camp in
Willis, Texas, a jury found him guilty on counts three and four,
and the government dismissed the other two counts.
#84.
In accordance with the presentence report, Shah’s advisory
guideline
sentencing
range
was
calculated
by
the
Probation
Department as a base offense level of 14 under United States
Sentencing Guideline (“U.S.S.G.”) § 2K1.2, an offense level of 14,
a criminal history category of I, and an advisory guideline
sentencing range of 15-21 months, for a total offense level of 16.
In an upward departure, adding 12 levels to the total offense
level, raising it to 28, for counts three and four, the undersigned
judge sentenced Shah on September 14, 2007 to a total term of
imprisonment of 78 months for each of the two counts, to be served
concurrently, to be followed by a three-year term of supervised
release, and a special assessment of $200.
#102, Minute Entry;
#108 at pp. 47-50, Transcript of Sentencing Hearing.4 Judgment was
4
Regarding the Court’s upward departure, the Guidelines
permit an upward departure if “the defendant’s criminal history
category substantially underrepresents the seriousness of the
-8-
defendant’s criminal history or the likelihood that the defendant
will commit other crimes.”
U.S.S.G. § 4A1.3(a)(1). At Shah’s
sentencing hearing the undersigned judge explained her decision to
upwardly depart as follows, #108 at pp. 47-49:
THE COURT: I heard all the evidence at the trial and
which is something that those of us here did but not
everybody in the audience or the public did. So I think
that it must be emphasized that my rulings and my
sentence are based upon what I heard in the evidence and
weighing the credibility of the witnesses as well as the
presentence report and the Government’s filings and the
defendant’s filings in objection to the report.
Pursuant to 5K2.0 and under 3553(a), the statute-the statute, I find that an upward departure is warranted
as the underlying conduct of the defendant was not fully
captured under United States Sentencing Guidelines
Section 2K2.1.
Under Chapter 3, the Chapter 3 adjustment under
3A1.4 was not applied because I do not believe that Mr.
Shah’s crime was an enumerated defense; but had it been
applicable, there would have been a 12-level adjustment,
as well as a bump up in the criminal history category to
VI.
I do find that Mr. Shah’s conduct was calculated to
influence or affect the conduct of the Government by
intimidation or coercion or to retaliate against the
Government conduct and is a violation of 956(a)(1), which
relates to conspiracy to murder, kidnap, or maim persons
abroad, and 1114, which relates to killing or attempted
killing of officers and employees of the United States.
So in an effort to fashion an upward departure that
would be appropriate and would also satisfy the
sentencing objectives of 3553(a), I believe that it is
appropriate for me to add 12 levels to the total offense
level of-–
MR. COOK:
16.
THE COURT:
–-16.
I will not make any adjustments,
obviously, to the criminal history category. But I will
then, adding 12 points to the 16, would give a total
offense level of 28, with which--with a criminal history
category of 1, gives a guideline provision range of 78 to
97 months.
And I will say also that part of my upward departure
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entered on September 26, 2007.
#106.
On direct appeal on October 31, 2008 the Fifth Circuit
affirmed Shah’s conviction.
#126, 127; available at United States
v. Shah, 294 Fed. Appx. 951 (5th Cir. Oct. 6, 2008), cert. denied,
558 U.S. 849 (2009).
The Fifth Circuit found that (1) the
consistent and corroborative testimony of three law enforcement
officers that Shah voluntarily waived his Miranda rights after his
arrest
was
credible
and
not
clearly
erroneous,
while
Shah’s
testimony was not credible; (2) the evidence was sufficient to
support the conclusion that Shah was not entrapped into possession
of a firearm but was a willing participant in the combat training
sessions; and (3) this Court was aware that it had the discretion
to sentence Shah below the sentencing range of the advisory
guidelines, and the Court’s imposition of a 78-month sentence,
based solely on policy considerations, was permissible and not
plain error.
The
Id.
Supreme
Court
denied
certiorari on October 5, 2009.
Shah’s
petition
for
writ
of
#128; 558 U.S. 849 (Oct. 5, 2009).
Shah signed his § 2255 motion on September 28, 2010.
It was
timely logged in as mail by the Federal Correctional Facility on
September 29, 2010 and postmarked October 5, 2010. It was filed in
is an effort to satisfy 18 United States Code, section
3553(a)’s mandate that the Court is to consider the
deterrence of future crimes not only by the defendant
himself but also by other members of the public.
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this Court on October 7, 2010.5
#129 at p. 25.
The Court has been informed by Shah’s last attorney, Robert J.
Boyle, that after serving his sentence, Shah was deported.
Shah’s § 2255 Motion
Shah’s ineffective assistance of trial counsel claim rests on
three
grounds:
(1)
counsel
failed
to
object
to
clearly
inadmissible evidence; (2) counsel failed to utilize available
impeachment and/or exculpatory evidence; and (3) counsel failed to
argue relevant legal issues at sentencing.
Regarding his attorney
on appeal, Shah charges that appellate counsel was ineffective
in
(1) failing to challenge trial counsel’s ineffectiveness; (2)
failing to appeal the Court’s ruling that a statement by Jim Coates
to Shah was inadmissible; and (3) failing to appeal the admission
of evidence from Shah’s computer.
The Magistrate Judge’s Memorandum and Recommendation
To Shah’s contention that counsel could have and should have
5
For purposes of the Antiterrorism and Effective Death
Penalty Act’s (“AEDPA’s”) one-year statute of limitations which
runs from the date on which the conviction becomes final, to stop
it from running, a pro se inmate’s habeas petition is deemed filed
when delivered to prison authorities for mailing (the “mailbox
rule”), even if he did not pay the required filing fee at the time.
Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998). The rule does
“not apply to prisoner litigants who are represented by counsel.”
Cousin v. Lensing, 310 F.3d 843, 847 (5th Cir. 2002). Shah did not
obtain counsel for his habeas proceeding until January 7, 2011
(#136, 137), long after he filed his motion to vacate. Thus Shah’s
§ 2255 motion was timely and the Court also has properly relied on
the memorandum subsequently filed by counsel in support of Shah’s
§ 2255 motion in reaching its decision.
-11-
objected to clearly inadmissible evidence, failed to use available
impeachment and/or exculpatory evidence, and failed to properly
argue relevant legal issues at sentencing, Magistrate Judge Stacy
concluded that “the record either affirmatively shows that Shah’s
trial counsel was not deficient or there is no evidence that the
alleged errors prejudiced Shah within the meaning of Strickland.”
#142 at p. 14.
Relying on the affidavit (#135) of trial counsel, Frank
Jackson, the trial record, and the
pre-sentence investigation
report (“PSR”) (#98), Magistrate Judge Stacy found that Shah had
not overcome the presumption that counsel’s decisions reflected a
sound trial strategy:
the documents show he was well prepared for
trial and performed thorough examinations of the witnesses with a
clear familiarity with all of the exhibits.
While he may not have
objected at times that Shah argues he could or should have, the
record demonstrates that he acted in a manner consistent with his
sound trial strategy. In support of Shah’s entrapment defense, Mr.
Jackson presented evidence that Shah intended to fish, not shoot
weapons, while at the camp.
She noted that “[a] court should not
find inadequate representation merely because, with the benefit of
hindsight, the court disagrees with counsel’s strategic choices.
Green v. Johnson, 116 F.3d 115, 1122 (5th Cir. 1997).”
#143 at p.
15.
Shah argued that counsel should have objected as inadmissible
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the testimony of Malik Mohammed and of FBI Agent John McKinley,
defining “jihad,” when they were not qualified as experts able to
offer testimony requiring specialized knowledge under Federal Rule
of Evidence 702,6 or, alternatively, as nonexpert witnesses, were
allowed
to
offer
opinions
that
were
not
based
on
their
perception in violation of Federal Rule of Evidence 701.7
own
The
Government responded that many witnesses, including Shah, used
6
Rule 702, “Testimony by Expert Witness, states,
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is
principles and methods; and
the
product
of
reliable
(d) the expert has reliably applied the principles
and methods to the facts of the case.
7
Rule 701, “Opinion Testimony by Lay Witnesses,” provides,
If a witness is not testifying as an expert,
testimony in the form of an opinion is limited to one
that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s
testimony or determining a fact in issue; and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
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terms like “jihad” and “jamaat” and that counsel endeavored to show
that “jihad” had numerous meanings and that Shah did not previously
contemplate engaging in armed conflict.
Judge
demonstrated
Stacy
that
found
the
that
term
cross
“jihad”
examination
had
numerous
generally
meanings,
establishing that Shah was not prejudiced by counsel’s failure to
object to anyone’s definition.
McKinley testified that “jihad”
meant “armed conflict” (Trial Transcript, Vol. I, #115 at p. 153),
while Mohammed defined it as “fight--we wanted to fight people that
were oppressing, you know, Muslims.”
Id. at p. 191).
The
Magistrate Judge noted that FBI Agent McKinley testified that he
was the case agent in a 2004 investigation (Operation 8-Traq) of
Muslim James Coates (“Coates”) and two of his associates, Kobie
Williams (“Williams”) and Adnan Mirza (“Mirza”), who, McKinley
testified, had stated they wanted to go overseas and engage in
“jihad” and whom McKinley, on cross examination, identified as the
source of his “armed conflict” definition at Shah’s trial:
“Because
their
discussion
containing
references
to
jihad
or
discussions about jihad were also within the context of what they
were training for. . . . . To go overseas and engage US Coalition
forces in Afghanistan in combat operation.”
McKinley in addition
agreed that the term had many different meanings. #115 at pp. 17475.
But when asked further about his statement, he conceded they
did not specifically say those words, i.e., that they were going
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overseas to engage in armed conflict, but that he inferred they
were from the context of the tapes.
Id. at p. 175.
Magistrate
Judge Stacy opined that even if one assumed that counsel could have
and should have objected to McKinley’s definition, Shah has not and
cannot show that he was prejudiced by it.
On cross examination
Malik Mohammed also agreed regarding his definition that there are
a lot of people in the world who are oppressing Muslims.
Transcript, Vo. II, #116 at p. 306.
meaning “striving.
Trial
Shah defined “jihad” as
Literally, that is the terminology.
religion it is used as striving for a good cause.”
In our
Shah also
agreed that the term had different meanings depending on the
context in which it was used.
p. 477.
Trial Transcript, Vo. IV, # 117, at
The Magistrate Judge found that given the testimony by
Mohammed and McKinley on cross examination and Shah on direct
examination about the multiple meanings of “jihad,” Shah failed to
show he was prejudiced by his counsel’s failure to object.
Responding to Shah’s contention that counsel was ineffective
for failing to object to Malik Mohammed’s testimony that Shah was
not surprised that there were weapons at the camp (#115, p. 192,
200-01, 205-06), Magistrate Judge Stacy quoted his answer on cross
to counsel’s question on cross examination, “[I]s there anything in
any of those transcripts to reflect that Maaz Shah knew that ya’all
were going to be doing any shooting on Saturday, January 14?”: “In
the transcripts, no, but the fact that we were sitting there with
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the guns right there, yes.”
#116 at p. 309.
Regarding Mohammed’s testimony about Shah’s description of his
passport as a “terrorist passport” with visas of “all the places
that had activity, terrorist activity” (#116, pp. 224, 225),8 Shah
argues that counsel failed to object and that the government was
seeking specialized knowledge from Mohammed as a law enforcement
officer involved in terrorism investigations.
Judge Stacy pointed
out that counsel questioned Mohammed about his statement and
Mohammed agreed that given the context where everyone was laughing
and having a good time, it could have been a joke and that “[i]t
wasn’t elicited, so I don’t know how he intended it.”
#116 at p.
310. When Shah was given an opportunity to clarify his comment, he
testified that in the context of a group of Muslim friends, it “was
merely a joke.
I decided to make a joke of it.”
#117 at pp. 483
and 484.
Magistrate Judge Stacy further stated that even if one assumed
that counsel could and should have objected to Mohammed’s testimony
about the “terrorist passport,” Shah has not shown that he was
8
In a footnote, #143 at p.21 n.5, the Magistrate Judge quoted
FBI Agent Snow Robertson, who interviewed Shah after his arrest,
regarding Shah’s alleged comment about his passport, #117 at p.
412,:
Initially, I asked him--I said, “Have you ever said that
you are a terrorist?” And initially he said no. And
then I went into further details about, “Did you ever
say-raise your passport up and say, “This is a passport
of a terrorist while you were conducting firearms
training.” And he said, “yeah, maybe.”
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prejudiced
by
his
failure
to
object
on
the
ground
that
the
government was trying to give more weight to Mohammed’s testimony
as an expert in international terrorism.
Shah claims that counsel failed to object when Mohammed
inferred from remarks relating to Shah’s immigration status that
“he realized his residency status--that he could get in trouble in
coming out there shooting.”
#116, at pp. 254-55.
Shah claims an
objection should have been made because Shah had said nothing to
Mohammed about Shah’s immigration status.
the
record
reflects
that
Shah’s
objection to this testimony.
Judge Stacy noted that
attorney
did
make
a
timely
#116 at p. 254.
Shah contended that counsel was ineffective in failing to
object to Snow Robertson’s testimony as highly prejudicial in that
Robinson testified that Shah told Robinson that it was Shah’s
“obligation to train in firearms to be able to, how did he put it,
to be able to essentially conduct jihad against the United States
because of–-because of our actions in Iraq.
obligation” as a Muslim.
#117 at p.411.
And it was his
Shah claims that his
attorney should have moved to strike this improper and highly
prejudicial testimony.
Magistrate Judge Stacy pointed out that
counsel did object on the grounds that the statement was outside
the scope agreed to at the pretrial conference and that the
undersigned Judge advised counsel to address the issue on cross
examination.
On cross examination counsel did ask questions about
-17-
the statement and received a response that the interview was
conducted on November 28, 2006, that Snow Robertson conceded that
he took no notes during the interview, and that when he wrote his
report two days later, it did not mention the statement.
pp.
414,
416,
418.
Robertson
also
admitted
to
#117 at
counsel
on
questioning that nowhere in Robinson’s report was the phrase “I
want to kill Americans” found, but he also testified that Shah said
“he had an obligation to conduct jihad against Americans and
coalition forces, which is kill Americans.” #117 at pp. 418-19.
Counsel objected.
Judge Stacy summarized that given the fact that
counsel
to
objected
the
testimony,
Shah
has
not
shown
that
counsel’s performance fell below that required by Strickland by not
moving to strike the testimony.
Moreover counsel
questioned Shah
about his remarks to Robertson, and Shah denied having said to
Robertson
that
jihad
including soldiers.
meant
going
out
and
#117 at pp. 477, 541.
killing
Americans,
Shah also questioned
Robertson’s veracity, claiming he lied about Shah’s going oversees
and his duty to fight the invading American and coalition forces.
#117 at p. 520.
Magistrate Judge Stacy concluded that Shah failed
to show “he was prejudiced given the jury was ultimately charged
with assessing witness credibility,” as evidenced by the trial
court’s jury instructions #143 at pp. 23, 26-27, citing #81 at pp.
4-5.
Shah also claims that counsel was ineffective in failing to
-18-
object to the evidence of highly prejudicial extremist materials
found
on
Shah’s
computer,
including
inter
imprisoned Sheiks Nasit al Fahd and Omar
alia
letters
from
Abdel Rahman and an
article entitled “All Desiring Jihad in the lands of the Arab
Peninsula.”
Shah argued that five theoretical articles and the
letters on his computer failed to prove he had a predisposition
toward acts of violence or possession of a firearm.
The Magistrate Judge also observed that Amy Trippel, an FBI
agent assigned to the Computer Analysis Response Team laboratory
testified about the contents of the hard drive and that counsel
then tried to show that many people had access to Shah’s computer.
On cross examination, Agent Trippel conceded that she could not
determine when the material was generated and placed on the hard
drive, whether Shah had generated any of it, and whether Shah had
even viewed any of it.
#117 at p. 363.
The Magistrate Judge
further found that in support of Shah’s claim that many people had
access to his laptop, counsel effectively cross examined Julie
Vaughn, an FBI intelligence agent, who testified that Shah had over
800,000 items on his hard drive, that Vaughn had bookmarked as
pieces of interest over 1,700 items, and that she could not
identify who placed the material on the computer. #117 at pp. 36465, 367, 369, 370, 377, 380, 381.
Counsel objected to their
admissibility and their irrelevance, but was overruled.
Judge
Stacy found that counsel’s cross examination corroborated Shah’s
-19-
claim that many people in addition to himself had access to the
computer.
In addition Shah claimed he was prejudiced by counsel’s
failure to object to the government’s cross examination of Shah and
his eighteen-year-old brother, Syed Irbuz Shah, regarding their
father’s immigration status.
Judge Stacy pointed out that Shah’s
father’s immigration status was initially brought up when the
government questioned Jessica Guilbeau, a senior special agent with
the
Department
of
Homeland
Security,
Immigration
and
Customs
Enforcement, about Shah’s visa status, which was central to the
charges against him. She testified that Shah’s visa for entry into
the United States in 2005 had been revoked because his father’s
visa had been revoked on national security grounds.9
#116 at pp.
332, 336-39. The government asked the Shah brothers what they knew
of their father’s immigration status in the United States, and
Shah’s brother answered that he was aware of the revocation of his
father’s visa, that his father had tried a number of times to get
back in the United States but was denied, but stated that he was
unaware of any donations by his father to Hamas.
#117 at 450.
Petitioner stated that he had information that his father’s visa
had been revoked and that his father would not be allowed to return
here.
#117 at p. 506.
The magistrate judge found that because the
9
Although revoked, the revocation was not effective, and Shah
would be here legally, until he departed the country.
Guilbau
testimony, #116 at p. 336-38.
-20-
father’s immigration status had initially been brought up earlier
during the government’s questioning of Agent Guilbeau and because
the brothers, themselves, testified about their father, counsel was
not ineffective for failing to move for a mistrial.
Shah maintains that counsel was also ineffective for failing
to object to the government’s question whether Shah knew that Kobie
Williams had pleaded guilty to providing money to the Taliban. The
magistrate judge found the government’s questioning Shah about
Williams was within the scope of direct examination because Shah
had testified that he had met Williams doing charity work and that
he was a member of a “jaamat” with Williams, Mirza, Coates, and
others to provide charitable services to the community. #117 at p.
469.
Shah’s counsel presented evidence at trial showing that Shah
was entrapped to attend the camp and that he actually went to fish
by means of the testimony of Bilal Kathrada, who testified that
Shah had purchased a fishing rod and supplies at Walmart before
Kathrada dropped him off at the camp in January 2006.
#117, pp.
423, 425. Shah, himself, testified that he bought fishing gear and
equipment, while Mohammed testified that Shah wanted to fish and
had gone fishing with Coates.
#116, pp. 300, 302, 306, 308, 309.
Shah has objected that counsel was ineffective for failing to use
impeachment and/or exculpatory evidence.
Magistrate Judge Stacy
found that additional evidence would have been cumulative and that
-21-
it was the jury’s province to decide which testimony to believe, as
they were instructed before deliberation.
Another
ineffective
assistance
claim
is
that
at
Shah’s
sentencing hearing counsel failed to present evidence and use the
trial transcript to rebut the finding that Shah’s conduct was
designed to murder persons abroad and/or kill employees of the
United States.
Judge Stacy found that the sentencing hearing
transcript shows that counsel filed objections to the PSR and
argued them, that counsel successfully argued against increasing
Shah’s base offense level because his alleged offenses did not fall
under the enumerated offenses under U.S.S.G. § 3A1.4, the terrorist
bump, and that he argued, though unsuccessfully, against the
government’s request for an upward departure.
participated
in
the
hearing.
#108,
pp.
Moreover Shah fully
8-19,
26-45.
The
Magistrate Judge concluded that the record shows that counsel
vigorously argued against a terrorist bump and an upward departure,
while Shah failed to show how the transcript of the trial would
have made a difference to his sentence since the undersigned judge
indicated
that
her
decision
was
based
on
the
evidence,
the
credibility of the witnesses, the PSR, and the submissions of the
parties.
As for his attorney’s performance on appeal, Shah contends
that he should have raised the issue of his ineffective assistance
in the trial court.
Judge Stacy pointed out that such claims are
-22-
not generally raised on direct appeal.
United States v. Bass, 310
F.2d 321, 325 (5th Cir. 2002)(“[A] claim for ineffective assistance
of counsel is properly made in a § 2255 motion because it raises an
issue of constitutional magnitude and, as a general rule, cannot be
raised on direct appeal.”), citing United States v. Pierce, 959
F.2d 1297, 1301 (5th Cir. 1992).
Shah also complains that appellate counsel was ineffective in
not challenging Shah’s sentence, but the magistrate judge pointed
out that counsel did object, and that the Fifth Circuit affirmed
his sentence.
This Court further notes that record shows that
appellate counsel did appeal the Fifth Circuit’s decision and that
the Supreme Court denied Shah’s petition for writ of certiorari on
October 5, 2009.
#128; 558 U.S. 849 (Oct. 5, 2009).10
Shah also charges that appellate counsel could have and should
have challenged this Court’s admission of evidence about Sheik Omar
Abdur-Rahman that was discovered on his computer.
The magistrate
judge noted that Shah did not suggest a legal basis on which such
objection could be asserted and that conclusory allegations of
ineffectiveness cannot support such a claim.
Finally Shah objects that counsel should have appealed this
Court’s refusal to admit a statement by Coates to Shah.
Judge
Stacy pointed out that the record demonstrates that the Court
10
Judge Stacy appears confused in stating that “appellate
counsel appealed Shah’s sentence and the Fifth Circuit affirmed his
sentence.” #143 at p. 45.
-23-
allowed counsel to offer evidence in the form of the transcript of
the recorded conversation and that counsel read it into the record.
#117, p. 491.
She further observed that Shah failed to show that
he was prejudiced by the admission of the statement.
In sum the Magistrate Judge determined that Shah failed to
show that counsel’s performance both at trial and on appeal
amounted to ineffective assistance under prevailing norms and
recommended that this Court deny his § 2255 motion in full.
Shah’s Statement of Objections (#144)
Shah objects to United States Magistrate Judge’s “almost
uncritical acceptance of trial counsel’s assertion in his affidavit
(#134) that his repeated failure to object to clearly inadmissible
evidence and to present available impeachment and/or exculpatory
evidence was based on trial strategy.
Shah argues that the
affidavit is unsound because (1) his claim of trial strategy is
conclusory and does not address any of the acts or omissions
detailed in Shah’s § 2255 motion, and (2) proper evidentiary
objections and the presentation of the evidence set out in his
petition
would
have
been
consistent
with
and
even
enhanced
counsel’s trial strategy to argue that Shah did not intend to
possess weapons or engage in training when he went on the two
camping trips, but was induced to handle a weapon by government
agent Mohammed.
Any strategic reason for failing to object or
present evidence was not reasonable.
-24-
Next Shah objects to improper opinion testimony by several
individuals.
Shah contends that Mohammed and McKinley’s interpretations of
the meaning of “jihad,” “in the context of this case” or “with this
group of men,” as referring to armed combat (Trial Transcript
)”TT”) at pp. 153, 191) were improper lay opinion evidence since
they were not “helpful” to the jury, but were simply argument.
Moreover because McKinley never interacted with Shah or any of the
men heard in recorded conversations, McKinley’s testimony was
inadmissible because it was not based upon personal perception.
Federal Rule of Evidence 602 states, “A witness may not testify to
a matter unless evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter.”11
See United States v. John, 597 F.3d 263, 278 (5th Cir. 2010), citing
Texas A&M Research Foundation v. Magna Transp., Inc., 338 F.3d 394,
403 (5th Cir. 2003)(“‘Under [Fed. R. Evid.] 701, ‘a lay opinion must
be based on personal perception, must be one that a normal person
would form from those perceptions, and must be helpful to the [fact
finder].’
‘In particular the witness must have personalized
11
This Court observes that the current version of Rule 602
amended in 2011 with stylistic changes only, states,
A witness may testify to a matter only if evidence
is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence
to prove personal knowledge may consist of the witness’
own testimony. This rule does not apply to a witness’s
expert testimony under Rule 703.
-25-
knowledge of the facts underlying the opinion and must have a
rational connection to those facts.’”).
Regarding Shah’s comment to others in one of the recorded
conversations during the January 2006 camping trip that due to his
extensive travel his was a “terrorist passport, (TT at p. 224)”
Shah
objects
that
Mohammed
was
permitted
to
testify
without
objection that the countries listed in that passport were “all
places that has had [sic] activity, terrorist activity” (TT at p.
225).
He argues that Magistrate Judge Stacy’s finding of no
prejudice because counsel elicited that Petitioner was laughing and
therefore not serious when he made the comment did not make
Mohammed’s testimony admissible.
Mohammed was permitted to opine,
without any stated basis in fact, that Shah traveled to countries
that engage in terror or harbor terrorists.
See United States v.
Sosa, 513 F.3d 194, 200 (5th Cir. 2008)(a witness’s “specialized
knowledge” must be determined before he/she may offer an expert
opinion).
Because a critical issue at trial was whether Shah had
a predisposition to handle weapons, this “expert” testimony had a
prejudicial effect on the jury.
In one of the recorded conversations, Shah stated that Ayub
Badat expressed concern about Shah’s participation in the camping
trip. Counsel objected to that statement on hearsay grounds. Shah
further stated that he was “on immigrant visa and things can get
revoked easily for any small, whatever you want to call it . . . .”
-26-
Government 16A, pp. 254-55.
Without objection from counsel,
Mohammed testified that Shah meant that “he could get in trouble
coming out there shooting.”
TT at pp. 254-55.
Magistrate Judge
Stacy found that counsel committed no error because he did object.
Shah distinguishes the fact that while Mohammed objected to the
hearsay, he did not object to Mohammed’s opinion that Shah was
referring to target practice when he stated that he could get in
trouble, which Shah characterizes as an improper use of expert
testimony.
Shah lodges other failures by counsel to object.
He notes
that Magistrate Judge Stacy determined that Shah was not prejudiced
by the admission of several inflammatory articles and other items
found on his computer because counsel demonstrated that others may
have had access to that laptop.
Shah argues that counsel’s
attempted minimization of the impact of these matters does not
obviate the fact that they should not have been admitted since
there was no evidence that Shah read those materials or agreed with
the thoughts and opinions in them. Any limited probative value was
far outweighed by prejudice to Shah.
Fed. R. Evid. 403.
Shah testified on direct examination that he met
Williams while doing charity work.
Kobie
On cross examination, without
objection from counsel, the government elicited that Williams had
pleaded guilty to providing money to the Taliban.
TT at p. 511.
Shah asserts that Magistrate Judge Frances Stacy erroneously found
-27-
there was no error because the testimony was relevant.
Shah
contends that Williams’ guilty plea is not relevant to the issue
whether Shah had a predisposition to possess weapons and that
Williams’ character was not at issue at Shah’s trial.
Criminal
defendants “are entitled to have questions of guilt based on
evidence against them, not on whether a government witness or
codefendant has pled guilty to the same charge.”
United States v.
Delgado, 401 F.3d 290, 299 (5th Cir. 2005); see also United States
v. Harrell, 436 F.2d 606 (5th Cir. 1970)(finding plain error where
the
court
did
not
give
codefendant’s guilty plea).
a
limiting
instruction
concerning
Moreover the prejudice from admission
of this testimony was compounded because Williams pled guilty to
far more serious charges, i.e., material aid to a terrorist
organization.
No limiting instruction was given because counsel
did not object. Thus the jury could use Williams’ material support
conviction as evidence against Shah.
Again because of the prejudice, counsel should have objected
to the questioning of Shah’s brother about their father being
denied entry into this country because he made donations to Hamas.
Shah objects that Magistrate Judge Stacy’s conclusion that because
Shah and his brother mentioned their father in testimony, this
highly prejudicial evidence was admissible.
Even if their father
did make such a donation, it was not a “bad act” of either Shah or
his brother and has no relevance to the issue of whether Shah was
-28-
predisposed to handle a weapon in 2006.
Shah contends that the Magistrate Judge erred in concluding
that because trial counsel obtained testimony from Mohammed that
Shah had stated that he wanted to fish, counsel’s failure to use
additional
recorded
ineffective.
conversations
discussing
fishing
was
not
Instead, argues Shah, at trial Mohamed denied that
Shah brought fishing equipment on the trip, thereby implying he had
a
predisposition
to
possess
weapons.
TT
at
p.
311.
The
transcripts attached to Shah’s memorandum (#142) show that Shah did
bring fishing equipment with him and that Mohammed knew that he
did.
Memorandum, Appendix, p. 4.
credibility
is
central
to
Because the issue of Mohammed’s
Shah’s
entrapment
defense,
use
of
contemporaneous conversations would have bolstered his fishing
defense.
Court’s Decision
As a threshold matter, the Court finds that those parts of the
magistrate judge’s memorandum and recommendation not challenged by
Shah are not clearly erroneous or contrary to law.
Therefore the
Court addresses de novo the objections lodged by Petitioner.
As a threshold matter this Court would emphasize that the
Supreme Court opined in Strickland, 466 U.S. at 689,
Judicial scrutiny of counsel's performance must be highly
deferential. It 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
-29-
omission of counsel was unreasonable. A fair assessment
of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge
a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy. There are
countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.
Shah first objects to Magistrate Judge Stacy’s “uncritical
acceptance”
as
“trial
strategy”
conclusorily
stating
inadmissible
evidence’
impeachment
strategy.
and/or
that
and
his
of
failure
his
exculpatory
trial
failure
evidence
counsel’s
to
to
object
to
present
were
based
affidavit
“clearly
available
on
trial
The Court observes that Shah disregards the “strong
presumption” that the challenged conduct of trial counsel “was the
product of reasoned trial strategy.”
F.2d
Wilkerson v. Collins, 950
1054, 1064-65 (5th Cir. 1992)(citing Strickland), cert.
denied, 509 U.S. 921 (1993). Shah also fails to mention that trial
counsel explains in his affidavit that it was based on his memory
because he did not have access to the trial transcript in making it
since after the appeal of Shah’s conviction, “Shah demanded that
the record be forwarded to him in its entirety.”
importantly
here,
however,
this
Court
would
#135.
emphasize
More
that
Magistrate Judge Stacy expressly stated that she also relied on the
-30-
trial record and the PSR and proves it by citing to specific
portions
of
the
record
throughout
effectiveness and trial strategy.
her
analysis
of
counsel’s
As noted, “‘[t]he determination
of whether counsel has rendered reasonably effective assistance
turns in each case on the totality of facts in the entire record.
. . .
Thus, we must consider a counsel’s performance in light of
“the number, nature, and seriousness of the charges . . . the
strength of the prosecution’s case and the strength and complexity
of the defendant’s possible defenses.’”
Baldwin v. Maggio, 704
F.2d at 1329, citing Washington v. Estelle, 648 F.2d 276 , and
Washington v. Watkins, 655 F.2d at 1357. 12
Given the specificity
of Magistrate Judge Stacy’s examination and references to the
record, the Court overrules Shah’s objection.
Next, Shah contends counsel failed to object to McKinley’s and
Mohammed’s definitions of “jihad,” as improper lay opinion.
In United States v. Akins, 746 F.3d 590, 599 (5th Cir. 2014),
cert. denied, 135 S.Ct. 707 (2014), the Fifth Circuit recognized
that in the context of drug conspiracies, the traffickers’ jargon
was
“a specialized body of knowledge, familiar only in those
wise in the ways of the drug trade, and therefore a fit
subject for expert testimony.” But we have not limited
drug slang testimony to experts in all cases. Rather, we
12
See also Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir.
2003)(“A conscious and informed decision on trial tactics and
strategy cannot be the basis for constitutionally ineffective
assistance of counsel unless it is so ill chosen that it permeates
the entire trial with obvious unfairness.”).
-31-
have recognized that testimony about the meaning of drug
code words can be within the proper ambit of a lay
witness with extensive involvement in the underlying
investigation. In United States v. Miranda, [248 F.3d
434 (5th Cir. 2001),] the appellant maintained that an
FBI agent, who had not been designated as an expert
witness, testified about the meanings of various code
words heard on intercepted phone calls and thereby
“crossed the line” from lay to expert testimony.
In
rejecting that argument under the facts presented there,
we held that the agent’s testimony was permissible under
Fed. R. Evid. 701 because the agent’s extensive
participation in the investigation of this conspiracy,
including surveillance . . . and the monitoring and
translating of intercepted telephone conversations
allowed him to form opinions concerning the meaning of
certain code words used in this drug ring based on his
personal perceptions. Similarly, in United States v. ElMezain, [664 F.3d at 515] we acknowledged that some of
the facts presented by testifying agents would not be
known to an average lay person. But we held that the
district court did not err by admitting the testimony
because “the agents’ opinions were limited to their
personal perceptions from their investigation of this
case.” We noted that “[b]y explaining the meanings of
terms as used in the conversations and documents, as well
as the relationships between the people they were
investigating, the agents provided the jury with relevant
factual information about the investigation.
And we
clarified that “[t]estimony need not be excluded as
improper lay opinion even if some specialized knowledge
on the part of the agents was required, if it was based
on first-hand observations in a specific investigation.”
In this case, at trial (#115 at pp. 147-67), FBI Special Agent
McKinley testified that he entered service with the FBI in 2004 and
served with the international terrorism squad in Houston and in the
investigation that became known as Operation 8-Traq, during which
he performed many duties ranging from reviewing transcripts to
conducting surveillance.
The investigation began in early 2004
when the FBI interviewed Kobie Williams and James Coates after they
-32-
were found traveling through Big Bend National Forest with weapons
because it became concerned that Williams was going to commit an
act of terrorism in the United States.
resident of Houston.
Coates, a Muslim, was a
Coates voluntarily cooperated with the FBI
and provided information to it about Williams and his group.
McKinley testified that the agency used confidential sources or
cooperating witnesses to make recordings so it would have access to
people that law enforcement would not and to obtain information
that a law enforcement official could not get first hand.
These
recordings could allow the agents to hear for themselves what was
being said among the group under investigation and not have to rely
on someone else’s word.
Coates agreed to make such recordings and
did so of numerous conversations among Williams, Adnan Mirza,
Coates, and, later, Shah about their plans, training, and going
overseas to conduct jihad.
of the training sessions.
McKinley stated that Shah attended 40%
The FBI conducted airborne surveillance
of the weekend shooting camps and posted agents nearby as a
security team to listen over transmitters worn by Coates.
This Court concludes, using the same reasoning as the Fifth
Circuit did in Akins, that McKinley’s definitions of jihad and
jamaat were of terms used in the conversations and documents among
the people the FBI team was investigating, based on first-hand
observations in a specific investigation, and he provided the jury
with
relevant
factual
information
-33-
about
the
investigation.
Moreover
his
testimony
was
rationally
based
perception and would be helpful to the jury.
on
his
personal
See also United
States v. Jackson, 549 F.3d 963, 975 (5th Cir. 2008)(a witness may
testify “as a lay witness drawing from his ‘past experiences formed
from firsthand observation’ as an investigative agent.”); United
States v. El-Mezain, 664 F.3d 467, 514 (5th Cir. 2011).
The Court overrules Shah’s objections regarding McKinley’s
definitions.
Similarly
enforcement
Malik
officer,
Mohammed
he
testified
worked
alongside
that
as
federal
a
state
law
agents,
was
certified by the FBI to operate under cover and, among other
assignments, he served joint terrorism task forces.
178.
#115 at p.
In some he played the role of a Muslim male, as he did at the
request of officials in Houston in Shah’s case in Operation 8-Traq
in 2005.
Id. at pp. 181-82.
He was introduced to Kobie Williams
and Adnan Mirza through Jim Coates, the cooperating witness, as a
weapons trainer.
He became part of the “jaamat, as we called it,
which was our group, was pretty close, and I was one of the core
members of it.”
Initially the jaamat was composed of Williams,
Mirza, Coates and Mohammed, while later Shah joined the jaamat.
Id. at p. 186, 187-88.
Mohammed described the jaamat as composed
of “like-minded” individuals: “[b]asically the jaamat was somewhat
dissatisfied with the Americans, things that were going on with the
American government, in the government sense, and people that were
-34-
outspoken about such issues and believing the United States was
doing something wrong . . . .”
Id. at 188.
He further stated,
“The ultimate plan was to do our training and make ourselves as
military sound as possible, and we were going to go to Pakistan,
which would be like a takeoff point for us to get into Afghanistan
and Iraq and to eventually be able to engage some of the coalition
American forces and fight on the side of the Muslims.”
Id. at 189;
see also 190-91 (with Williams, Mirza and Shah, to Mohammed “Jihad
was basically, you know, fight–-we wanted to fight people that were
oppressing, you know, Muslims.”).
Mohammed attended three camping
weekends in September 2005, January 2006, and March 2006, the
latter two attended by Shah, and he was constantly in contact with
Mirza and Williams. He also recorded conversations and listened to
the tapes that were made and ensured that the transcripts based on
them were correct.
Thus his testimony was rationally based on his
personal perception obtained from his position and experience
during his investigative participation with the group and was one
“that a normal person would form from those perceptions,” as well
as one that was helpful to the factfinders.
The Court finds that
the Akins and United States v. Jackson rules and rationales would
apply to Mohammed, too.
In addition Rule 701 “allows lay testimony relating to a
defendant’s hypothetical mental state”:
“testimony regarding a
witness’s understanding of what the defendant meant by certain
-35-
statements is permissible lay testimony, as long as the witness’s
understanding is predicated on his knowledge and participation in
the conversation.”
United States v. Hassan, 742 F.3d 104, 135 (4th
Cir. 2014)(allowing testimony on defendant’s understanding of the
word “jihad”)(citing United States v. Offill, 666 F.3d 168, 177-78
(4th Cir. 2011), and United States v. Min, 704 F.3d 314, 325 (4th
Cir. 2013)), cert. denied, 135 S. Ct. 157 (2014).
Furthermore the Court agrees with Magistrate Judge Stacy that
testimony from various witnesses made clear that there were many
definitions of “jihad” and the jury did not have to accept any one.
Shah objects that during the January 2006 camping trip when
Shah told others that his was a “terrorist” passport, Mohammed was
allowed to state without objection from counsel that the countries
stamped in Shah’s passport were “all places that has had activity,
terrorist activity.”
#116 at 225.
This Court observes that
Mohammed testified that Shah was the first person to bring up the
passport and that he voluntarily made the statement linking his
passport with terrorist activity, opening the door.
Moreover,
Mohammed was asked, “As a law enforcement official doing what you
do, was there anything that struck you about the countries he
discussed,” and he answered, “[A]s the group stated, that is all
places that has had activity, terrorist activity.”
Id. at 225.
Thus Mohammed’s testimony was based on personal knowledge and
experience.
Moreover knowledge of which countries are targets of
-36-
terrorism in this age is not restricted to specialists in the
field.
Shah complains that while his attorney lodged a hearsay
objection to Ayub Badat’s expression of concern about Shah’s
participation in the camping trip, counsel did not object to
Mohammed’s opinion that Shah was referring to his immigrant status
and to target practice when he stated that he “could get in trouble
coming out there shooting,” a statement which Shah maintains is an
improper use of expert testimony.
In the context of Shah’s own
statement that he was “on immigrant visa and things can get revoked
easily for any small, whatever you want to call it . . . ,” and the
fact that the remark was made in the context of the shooting camp
group of would-be jihadists, the Court finds no prejudice in
counsel’s failure to object.
#16, pp. 254-55.
It does not take
an expert in the field to reach such a conclusion.
Regarding the inflammatory articles and matter found on Shah’s
laptop, not only did Judge Stacy find the evidence permissible, but
recognized there was evidence submitted showing others had access
to Shah’s computer.
This Court would emphasize that while the
articles might be inflammatory, they corroborated other evidence
presented at trial of Shah’s interest in and participation in
activity with the goal of involvement in jihad.
Shah objects that after Shah testified that he met Williams
while doing charity work, trial counsel failed to object when the
-37-
government elicited on cross examination that Williams had pleaded
guilty to providing money to the Taliban.
As Judge Stacy noted,
the evidence was relevant to Shah’s commitment to jihad, and
did open the door to such questioning.
Shah
Even if he had not,
Williams was not indicted with Shah, and there was substantial
independent evidence presented to the jury aside from Shah’s
association with Williams that Shah committed the crime for which
he was convicted. Thus the Court finds no prejudice from counsel’s
failure to object.
As for evidence that Shah and his brother’s father was barred
from re-entry into the United States and may have given money to
Hamas
in
the
past,
and
that
Shah’s
status
as
a
derivative
nonimmigrant was accordingly reovoked. the Court finds that, in
addition to being relevant to Shah’s own immigration situation, a
central issue in this case, any prejudice from the testimony is not
substantial based
on the totality of facts in the entire record,
nor so serious to render the trial unfair or the result unreliable
to warrant finding that counsel was ineffective. Bernard, 762 F.3d
at 471.
Shah has not shown that there is a reasonable probability
that but for counsel’s alleged unprofessional error, the result of
the trial would have been different.
Strickland, 466 U.S. at 694.
Last of all, Shah asserts that he went on the camping trips to
fish
and
that
counsel
failed
to
present
conversations to bolster this defense.
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additional
recorded
Shah argues that although
Mohammed denied that Shah had brought fishing equipment with him,
implying that Shah had a predisposition to possess weapons, the
transcripts which counsel attached to Shah’s memorandum showed that
Shah did bring such equipment with him and that Mohammed knew it.
First the Court would point out that Mohammed testified that “to
[his] knowledge . . . the only person who had any fishing gear was
Mr. Coates,” and he agreed with the questioning attorney that
Williams did not bring fishing gear.
added by the Court).
#116 at p. 218 (emphasis
See also id. at p. 322-23.
The Court notes
that there was testimony supporting Shah’s contention that he
brought fishing equipment by his friend, Bilal Kathrada, but
Kathrada’s testimony was swiftly impeached.
429-32.
See #117, p. 425-26,
As far as any fishing that Saturday morning (January 14,
2006) was concerned, Mohammed stated, “It would have been less than
an hour, a little less than that.
We basically got up at sunrise
to pray, and we had just a little time to get ready, get breakfast
started, things like that, so that we could go out for our training
for that morning,” which was “the focus of the day.”
Id.
Moreover
there is substantial evidence, including photographs, that Shah had
possession of and carried a weapon in the camp and participated in
the shooting, whether or not he also came expecting to fish.
Evidence demonstrated that during the training exercise he wore
camouflage, boots and military fatigues and carried a gun, again
supported by photographs.
#116 at p. 227.
-39-
In sum, the Court finds that Shah fails to show that his
counsel was ineffective at trial or on appeal.
Shah fails to
demonstrate that counsel committed such serious errors that his
performance fell below the objective standard of reasonableness in
light of the totality of the circumstances here or that there was
a reasonable probability that the result of the proceedings would
have been different had counsel acted as Shah unpersuasively argues
he should have.
For the reasons cited above, the Court, for the reasons stated
above,
hereby
ADOPTS
Magistrate
Judge
Stacy’s
memorandum
and
recommendation as its own and
ORDERS that Shah’s objections are OVERRULED.
The Court
further
ORDERS that Shah’s § 2255 motion is DENIED.
Shah’s motion to expedite (#149) is MOOT.
Certificate of Appealability
Finally, under 28 U.S.C. § 2255(c)(1)(B),
“Unless a circuit
justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from . . . the final order
in a proceeding under section 2255.”
See also Federal Rule of
Appellate procedure 22(b)(1)(“If an applicant files a notice of
appeal, the district judge who rendered the judgment must either
issue a certificate of appealability or state why a certificate
should
not
issue.”).
Furthermore,
-40-
“[a]
certificate
of
appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).
28
“A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that
jurists could conclude the issue presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003), citing Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Where the district court denies a § 2255 motion on the
merits, to warrant a certificate of appealability a Movant must be
able to show that “reasonable jurists would find the district
court’s
assessment
of
the
constitutional
claims
debatable
wrong.”
Hanry v. Cockrell, 327 F.2d 429, 431 (5th Cir. 2003).
or
A
district court may deny a certificate of appealability sua sponte.
Haynes v. Quarterman, 526 F.3d 189, 193 (th Cir. 2008), citing
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
Because Shah has failed to make a substantial showing of
a
denial of a constitutional right, i.e., that reasonable jurists
could disagree with this Court’s resolution of his claims, the
Court
ORDERS that Petitioner is DENIED a certificate of
appealability.
SIGNED at Houston, Texas, this
-41-
31st
day of
March , 2015.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
-42-
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