Awwad v. Willis et al

Filing 4

MEMORANDUM OPINION AND ORDER dismissing Petition without prejudice; denying all pending motions as moot; denying certificate of appealability; and closing civil case. Signed by Judge David C Guaderrama. (em)

IN THE UNITED STATES DISTRICT COURT
FORTIIE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

MOSTAFA AHMED AWWAD,
Reg. No. 85103-083,
Petitioner,

n

°

p '

'

.

§
§
§
§

v.

§

EP-17-CV-213-DCG

§

SCOTT WILLIS, Warden,
Respondent.

§
§

MEMORANDUM OPINION AND ORDER
Mostafa Ahmed Awwad, a federal prisoner at the La Tuna Federal Correctional Institution
in Anthony, Texas,' "challeng[es] his detention" through a pro se "Petition for Section 2241

Habeas Corpus Pursuant to Denial of Access to the Courts [and] Subsection

2255(2)."

Awwad claims the Bureau of Prisons is "frustrating [him] from pursuing his appeal [by]

confiscating his legal papers."3 After reviewing the record and for reasons discussed below, the
Court will, on its own motion, dismiss Awwad's petition because "it appears from the application

that the applicant ... is not entitled" to

relief.4

BACKGROUND AND PROCEDURAL HISTORY
According to court records in case number 2:14-CR-163-RBS in the United States District
Court for the Eastern District of Virginia, Mostafa Ahmed Awwad moved from Egypt to the
Anthony is located in El Paso County, Texas, which is within the territorial boundaries of the
Western District of Texas. 28 U.S.C. § 124(d)(3) (2012).
2

Pet'r's Pet.

11, 12, July 7, 2017.

Id. at 11.

28 U.S.C. § 2243 (2012).

-1-

United States in 2007, and became a naturalized citizen in 2012. He received an engineering
degree from Old Dominion University in 2013, and secured a civilian job with the United States

Navy as a general engineer in the Nuclear Engineering and Planning Department at the Norfolk

Naval Shipyard in Portsmouth, Virginia, in early 2014.
On September 18, 2014, Awwad was contacted by an Arabic-speaking undercover agent

with the Federal Bureau of Investigation posing as an intelligence officer for the Government of
Egypt ("GOE"). Without seeking additional information, Awwad agreed to meet with the agent
the following day at a park in Hampton, Virginia. During the meeting recorded surreptitiously by

the agent, Awwad claimed he was willing to use his position with the Navy to transfer military

technology to the GOE. Over the course of several months in the fall of 2014, Awwad attempted
to provide the agent with schematic designs for the USS Ford, the first in a class of new and

advanced aircraft carriers built for the Navy. Awwad's stated goals in providing the information
were to enable the GOE to construct a carrier by copying the Ford's design or to identify and

exploit relative weaknesses in the Ford's design in order to sink it. Awwad also offered to attach
tracking devices to U.S. submarines in the Norfolk Naval Shipyard so they could be followed
when they returned to sea.
Awwad was charged in a two-count indictment with attempting to export defense articles
and technical

data.5

Awwad elected to forgo trial and pleaded guilty, pursuant to a plea

agreement, to an information charging him with attempted espionage, in violation of 18 U.S.C.

§

Indictment, Dec. 3, 2014, ECF No. 3. "ECF No." refers to the Electronic Case Filing number
for documents docketed in United States v. Awwad, 2:14-CR-163-RBS (E.D. Va.). Where a
discrepancy exists between page numbers on filed documents and page numbers assigned by the
ECF system, the Court uses the latter page numbers.
-2-

794(a).6

As part of the plea agreement, Awwad waived his right to appeal his conviction or

sentence:
{T]he defendant knowingly waives the right to appeal the conviction
and any sentence within the statutory maximum described above (or
the manner in which that sentence was determined) on the grounds
set forth in 18 U.S.C. § 3742 or on any ground whatsoever, in
exchange for the concessions made by the United States in this plea
agreement.7

In exchange, the United States of America ("the Government") agreed it would move to

dismiss the indictment and it would not seek a death

sentence.8

The Government further agreed,

pursuant to Federal Rule of Criminal Procedure ll(c)(l)(C), that a sentence of 96 to 132 months'

imprisonment was an appropriate disposition of Awwad's

case.9

The Court accepted Awwad's plea and sentenced him to 132 months' imprisonment

followed by five years' supervised release.'°

Awwad did not appeal the conviction or sentence. He filed apro se "Initial Application
for Writs in the Nature of Quo Warranto and Habeas Corpus" asking the Court to provide

credentials and proof of the Judge's ability to legally serve as a United States District Judge." In
the same pleading, he also requested that the prosecutor, the Clerk of Court, and the United States

6

Plea Agreement 1, June 15, 2015, ECF No 34.
Id. at4.

8

Id. at
Id.

10

j

1,5.

at3.
Crim. Case, Oct. 19, 2015, ECF No. 49.

" Writ of Quo Warranto

14, Aug. 2,2016, ECFNo. 52.

-3-

Magistrate Judge provide proof of their legal authority.'2 The Court dismissed the petition,

explaining Awwad did "not have standing to obtain a writ of quo warranto, and even when
construed liberally given his pro se status, {his] Motion fail{ed] to assert any plausible, coherent, or
articulable claim for relief pursuant to 28 U.S.C. § 2255."

Awwad appealed this order,14 but the

Fourth Circuit Court of Appeals later granted Awwad' s motion for a voluntary dismissal of his
appeal.

Awwad filed apro se "Final Notice and Demand for Proof of Appointment and
Designation."6

The court construed this filing as a motion for specific performance, and denied

it as "nonsensical and frivolous."7

Awwad then filed apro se "Amended Application for Writs in the Nature of Quo Warranto
and Habeas Corpus,"8 with an accompanying
Bias,"2°

12

as well as a pro

se

affidavit.'9

He also filed

apro se "Affidavit of

"Petition for Writ of Mandamus Compelling Unsealing of Court

Id.

'

Order, Aug. 12, 2016, ECF No. 53 (citing Newman v.
537, 545 (1915)).

United States ex rel.

Frizzell, 238 U.S.

'

Notice of Appeal, Aug. 29, 2016, ECF No. 54.

'

Order, Oct. 31, 2016, ECF No. 72; Rule 42(b) Mandate, Oct. 31, 2016, ECF No. 73.

16

''
18

'
20

Mot. for Specific Performance, Aug. 29, 2016, ECF No. 58.

Order, Aug. 31, 2016, ECF No. 60.
Am. Writ of Quo Warranto, Oct. 11, 2016, ECF No. 63.

Aff., Oct. 11, 2016, ECP No. 64.
Aff. of Bias, Oct. 14, 2016, ECF No. 66.

Records" addressed to the Fourth Circuit Court of Appeals.2' The Court denied the Awwad's

"Amended Application."22
Awwad next filed apro se "Motion under 28 U.S.C.
Correct

Sentence."23

§

2255 to Vacate, Set Aside, or

In his motion, Awwad raised six grounds for relief. First, he argued that

because the United States lacked standing to prosecute him, "the court was without jurisdiction to
render judgment."24 Second, he challenged the indictment and criminal information as "flawed"
and "invalid."25 Third, he alleged a "misapplication of the statute" of conviction.26 Fourth, he

asserted the defense of duress regarding his conviction.27 Fifth, he alleged judicial

misconduct.28

Finally, he claimed his counsel rendered ineffective assistance, specifically citing "cultural and/or

racial bias of counsel leading to not knowingly, intelligently, and voluntarily entering a plea
agreement."29

The Court found grounds one through five were subject to dismissal for procedural default,

21

Pet. for Writ of Mandamus, Oct. 14, 2016, ECF No. 67.

22

Order, Oct. 18, 2016,ECFNo. 71.

23

Mot. to Vacate, Oct. 31, 2016, ECF No. 75.

24

Id at4.

25

Idat5.

26

Id at

27

Id at 7-8.

28

Id at 9.

29

Id at 10.

6.

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as Awwad could have raised them in a direct

appeal.3°

With regard to ground six, the Court found

Awwad had done nothing to undermine the Court's confidence in his counsel's representation, and
failed to show his counsel's performance was deficient.3'

The Court accordingly denied the

motion.
Awwad filed apro se petition for a certificate of appealability, which the Court transmitted
to the Fourth

Circuit.32

The Fourth Circuit dismissed Awwad's petition because he failed to make

the requisite showing:33

Before KING, AGEE, and Wynn, Circuit Judges.

A certificate of appealability will not issue absent "a
substantial showing of the denial of a constitutional right." 28
U.S.C. §2253(c)(2) (2012). When the district court denies relief on
the merits, a prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district court's assessment of
the constitutional claim is debatable or wrong. Slack v. McDaniel,
529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a debatable
claim of the denial of a constitutional right. Slack, 529 U.S. at
484-85.
We have independently reviewed the record and conclude that
Awwad has not made the requisite showing. Accordingly, we deny
the pending motion for a certificate of appealability
.

30

'

32

Mem. Final Order 5-11, Dec. 30, 2015, ECF No. 87.
Id. at 11-13.

Notice of Appeal, Jan. 17, 2017, ECF No. 89.
Opinion, May 26, 2017, ECF No. 96.

"

Id. at2.

Notably, the Fourth Circuit did not rule on the merits of Awwad's

§

2255 claims. The Fourth

Circuit subsequently stayed the mandate after Awwad filed a petition for rehearing en banc,35 but
ultimately denied the petition for rehearing when none of the judges expressed an interest in
hearing the

case.36

In his

§

2241 motion, Awwad asserts the Bureau of Prisons has frustrated him from

pursuing his appeal and denied him access to the

courts.37

He also claims he is "challenging his

detention ... using the 'savings clause' otherwise designated as [28 U.S.C.] Section

2255(e)."38

APPLICABLE LAW
"A section 2241 petition for habeas corpus on behalf of a sentenced prisoner attacks the
manner in which his sentence is carried out or the prison authorities' determination of its
duration."39

To prevail, a § 2241 petitioner must show that he is "in custody in violation of the

Constitution or laws or treaties of the United

States."4°

only in the district court with jurisdiction over his

A § 2241 petitioner may make this attack

custodian.41

By contrast, a motion to vacate or correct a sentence pursuant to 28 U.S.C. § 2255

Stay of Mandate, June 6, 2017, ECF No. 98.
36

Order, July 31, 2017, ECF No. 99.

Pet'r's Pet.
38

11.

Id. at 12.

Pack v. Yusufj 218 F.3d 448, 451(5th Cir. 2000) (citations omitted).
40

28 U.S.C. § 224 1(c) (2012).

41

United States

v.

Cleto, 956 F.2d 83, 84 (5th Cir. 1992).
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"provides the primary means of collateral attack on a federal sentence."42 Relief under § 2255 is
warranted for errors that occurred at trial or sentencing.43 A § 2255 movant may only bring his

motion in the district of conviction and

sentence.44

Section 2255 does contain a "savings clause" in subsection (e) which acts as a limited

exception to these general rules. It provides that a court may entertain a petition for writ of habeas
corpus challenging a federal criminal conviction if it concludes that filing a motion to vacate, set

aside or correct sentence pursuant to § 2255 is inadequate to challenge a prisoner's detention.45
However, a petitioner must satisfy a two-prong test before he may invoke the "savings clause" to
address errors occurring at trial or sentencing in a petition filed pursuant to § 2241:
[T]he savings clause of 2255 applies to a claim (i) that is based on
a retroactively applicable Supreme Court decision which establishes
that the petitioner may have been convicted of a nonexistent offense
and (ii) that was foreclosed by circuit law at the time when the claim
should have been raised in the petitioner's trial, appeal, or first §
42

Pack, 218 F.3dat451 (quoting Coxv. Warden,911 F.2d 1111, 1113 (SthCir. 1990)).
See Cox, 911 F.2d at 1114 (5th Cir. 1990) ("The district court's dismissal of these grounds

clearly was proper because they concerned alleged errors that occurred at sentencing and,
therefore, may be remedied under section 2255."); Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997)
("Because all of the errors Ojo alleges [occurred before or during sentencing], they must be
addressed in a § 2255 petition, and the only court with jurisdiction to hear that is the court that
sentenced him."); Solsona v. Warden, F. Ci, 821 F.2d 1129, 1131(5th Cir. 1987) (explaining that,
because defendant's claims attacked the constitutionality of his conviction and proof of his claims
would undermine the validity of his conviction, his exclusive initial remedy was a motion under §
2255).

Pack, 218 F.3d at 452.
"

See 28 U.S.C. 2255(e) ("An application for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by motion, to the court which sentenced
him, or that such court has denied him relief, unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of his detention.") (emphasis added).

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2255

motion.46

A petitioner must prove both prongs to successfully invoke the "savings
is not a mere substitute for § 2255, and a petitioner bears the burden

remedy is

clause."47

Section 2241

of showing that the § 2255

inadequate.48

Finally, "[a] court ... entertaining an application 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
With these principles in mind, the Court turns to Awwad's claims.

ANALYSIS
A. Access to the Courts

In his

§

2241 motion, Awwad asserts prison personnel frustrated him from pursuing an

appeal of his § 2255 motion and denied him access to the courts.50 He maintains these personnel

interfered with his mail and legal papers, and delayed his application for a certificate of
appealability:
On May 26, 2017, Petitioner through an outside source, checked the
docket of the Fourth Circuit Court of Appeals in Norfolk, Virginia
46

Reyes-Requena

v.

United States, 243 F.3d 893, 904 (5th Cir. 2001).

Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005).
48

Reyes-Requena, 243 F.3d at 901 (citing Pack, 218 F.3d at 452; Kinder v. Purdy, 222 F.3d 209,
214 (5th Cir. 2000)).
"

28 U.S.C. § 2243 (2012).

50

Pet'r's Pet. 11.

and found that the Court had denied his application for a Certificate
of Appealability (COA). Petitioner Mostafa Ahmed Awwad
proceeded to file a Petition to 'Recall the Mandate' the Court was
about to issue. The completed Petition ... was handed to the BOP
on Wednesday, the 31st of May, 2017. The tracking documents
demonstrate[] the Petition was either forwarded somewhere else or
there was an incorrect zip code. SIS officers ..., in the absence of
Mostafa Ahmed Awwad walk[ed] into his cell and disrupt[ed] his
legal papers as well as announcing in front of colleagues that "the
fun hasn't started yet." Both of these reasons do not implicate any
actions by Mostafa Ahmed Awwad. On the heels of discovering
this, Mostafia] Ahmed Awwad was informed he was on his way to
being transferred out of FCI La Tuna.5t
"Federal law opens two main avenues to relief on complaints related to imprisonment: a

petition for habeas corpus ... and a [civil rights] complaint."52 A Court will not grant a petition for
§ 2241 relief unless the petitioner is "in custody in violation of the Constitution or law or treaties of
the United States."53 The "sole function" of a habeas petition is relief from unconstitutional

custody, and "it cannot be used for any other

purpose."54

Indeed, "habeas corpus is not available

to prisoners complaining only of mistreatment during their legal

incarceration."55

Allegations

complaining of the rules, customs, and procedures affecting conditions of confinement or
treatment of prisoners are properly brought in a civil rights action under 42 U.S.C. § 1983 or
Bivens.56

Id. at 13-14.
52

Muhammad v. Close, 540 U.S. 749, 750 (2004).
28 U.S.C. § 224 1(c)(3) (2012).

Cook v. Hanberry, 592 F.2d 248, 249 (5th Cir. 1979) (per curiam).

Granville
56

v.

Hunt, 411 F.2d 9, 12 (5th Cir. 1969).

See 42 U.S.C. § 1983 (2012) (creating a private right of action for redressing violations of

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The distinction between a petition for habeas corpus and a civil rights action sometimes

becomes blurred when an inmate attacks unconstitutional conditions of confinement that may

affect the timing of his release from prison.57 The Fifth Circuit has therefore adopted a bright-line
rule: claims which would result in the inmate's immediate or accelerated release from prison must

be pursued in a petition for writ of habeas corpus, while claims which would not automatically

entitle the inmate to an immediate or earlier release from prison must be pursued as a civil rights
complaint.58

In his petition, Awwad complains that prison employees denied him access to the courts.59
He argues "the denial of equal protection through suppression of his appeal beyond the time within

which appeal could be had, rendered the commitment constitutionally

void."60

"[T]he right of access to the courts is an aspect of the First Amendment right to petition the

federal law by state officials acting under color of state law); Inyo County v. Paiute-Shoshone
Indians of the Bishop City., 538 U.S. 701, 708 (2003); Balladv. Wall, 413 F.3d 510, 518 (5th Cir.
2005). As the Respondents are federal officials, acting under the color of federal law, Cobb's
claims are properly brought as a Bivens action, rather than a suit under § 1983. See Bivens v. Six
Unknown NamedAgents ofFederal Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing a right
implied directly under the Constitution to recover damages against a federal official for a violation
of a constitutional right); Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999) ("A Bivens action is
analogous to an action under § 1983the only difference being that § 1983 applies to
constitutional violations by state, rather than federal officials.").

Carson

v.

Johnson, 112 F.3d 818, 820 (5th Cir. 1997).

58

Id. at 821; Cook v. Texas Dep 't of Criminal Justice Transitional Planning Dep 't, 37 F.3d 166,
168 (5th Cir. 1994).

Pet'r's Pet.
60

11.

Id. at 15.

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Government for redress of grievances."6' "[T]he fundamental constitutional right of access to the
courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal

papers by providing prisoners with adequate law libraries or adequate assistance from persons

trained in the

law."62

The record belies Awwad's assertion that the Bureau of Prisons is "frustrating [him] from

pursuing his appeal [by] confiscating his legal

papers."63

The record establishes that Awwad

waived his right to appeal his conviction or sentence in his plea agreement.64 It also shows he
filed a pro se "Initial Application for Writs in the Nature of Quo Warranto and Habeas

Corpus."6'

When the Court denied this application, Awwad filed apro se notice of appeal.66 Awwad next
filed apro se "Final Notice and Demand for Proof of Appointment and Designation."67 Awwad

then filed a pro se "Amended Application for Writs in the Nature of Quo Warranto and Habeas
Corpus,"68

with an accompanying

affidavit.69

He also filed

apro se "Affidavit of Bias,"7° as

61

Driggers

62

Bounds

63

Pet'r's Pet.

64

Plea Agreement 4, June 15, 2015, ECF No. 34.

65

Writ of Quo Warranto, Aug. 2, 2016, ECF No. 52.

66

Notice of Appeal, Aug. 29, 2016, ECF No. 54.

67

Mot. for Specific Performance, Aug. 29, 2016, ECF No. 58.

68

Am. Writ of Quo Warranto, Oct. 11, 2016, ECF No. 63.

69

Aff., Oct. 11, 2016, ECP No. 64.

70

Aff. of Bias, Oct. 14, 2016, ECF No. 66.

v.

v.

Cruz, 740 F.3d 333, 336 (5th Cir. 2014).

Smith, 430 U.S. 817, 828 (1977).
11.

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well as a pro se "Petition for Writ of Mandamus Compelling Unsealing of Court Records"

addressed to the Fourth Circuit Court of Appeals.7' Awwad next filed apro se "Motion under 28
U.S.C.

§

2255 to Vacate, Set Aside, or Correct Sentence."72 When the Court denied Awwad's

motion, he filed apro se petition for a certificate of appealability, which the Court transmitted to
the Fourth Circuit.73 Awwad clearly was not frustrated in pursuing his appeals.

With regard to Awwad's § 2241 petition, the Court notes an access-to-the-courts claim
does not challenge the fact or duration of a prisoner's confinement.74 A favorable determination
on a claim will not automatically entitle a prisoner to an accelerated release from prison.7S The

Court accordingly finds that Awwad may not utilize § 2241 proceedings to obtain sentencing relief

based on his access-to-the-courts claim. It will, therefore, deny Awwad's claim, pursuant to 28
U.S.C. § 2243, without prejudice to him pursuing it in a separate civil rights action.76
B. Challenge to Detention

Awwad also claims he is "challenging his detention ... using the 'savings clause' otherwise

designated as [28 U.S.C.] Section 225 5(e)."77 He claims Fourth Circuit's order denying him a
71

Pet. for Writ of Mandamus, Oct. 14, 2016, ECF No. 67.

72

Mot. to Vacate, Oct. 31, 2016, ECF No. 75.

Notice of Appeal, Jan. 17, 2017, ECF No. 89.
'7L

Preiserv. Rodriguez, 411 U.S. 475, 484 (1973); Carson v. Johnson, 112 F.3d 818, 820-21 (5th
Cir. 1997) (quoting Ore/lana v. Kyle, 65 F.3d 29, 31(5th Cir. 1995)).
See Pierre v. United States, 525 F.2d 933, 935 (5th Cir. 1976) ("Simply stated, habeas is not
available to review questions unrelated to the cause of detention.").
1

76

Carson, 112 F.3d at 820-21.

Pet'r's Pet.

12.

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certificate of appealability does not include a list the names of the judges, findings of fact and

conclusions of law, or a grant of a certificate of appealability before the Court of Appeals rendered
He also argues the Fourth Circuit applied the wrong legal standard:

judgment.78

[T]he District Court in Norfolk, Virginia, denied Awwad's
application for a Certificate of Appealability and the Fourth Circuit
inverted the statutory order of operations, by applying the wrong
standard in denying Awwad's petition for Certificate of
Appealability, in contravention of the controlling and unambiguous
holding of the Supreme Court in Buck v. Davis, 137 S.Ct. 759
(2017) that clarifies the standard for COA.79
In Buck, the Supreme Court explained that at the certificate of appealability stage, a court

of appeals should address only whether the district court's decision was debatable:
The COA inquiry, we have emphasized, is not coextensive with
a merits analysis. At the COA stage, the only question is whether
the applicant has shown that "jurists of reason could disagree with
the district court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further." [MillerEl, 537 U.S.] at 327,
123 S.Ct. 1029. This threshold question should be decided without
"full consideration of the factual or legal bases adduced in support
of the claims." Id., at 336, 123 S.Ct. 1029. "When a court of
appeals sidesteps [the COA] process by first deciding the merits of
an appeal, and then justifying its denial of a COA based on its
adjudication of the actual merits, it is in essence decidin an appeal
without jurisdiction." Id., at 336-337, 123 S.Ct. 1029. °
As the Court explained above, Awwad may proceed with an attack on the validity of his

sentence in a § 2241 petition only if he can meet both prongs of the stringent test for the § 2255

78

Id. at

16.

But see

Pet'r's Pet.
80

Buck, 137

Opinion, May 26,

2017,

ECF No.

17-18.

S.

Ct. at

773.

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96.

"savings clause."8' He "must establish that his claim (1) is based on a retroactively applicable
Supreme Court decision which establishes that he might have been convicted of a nonexistent
offense and (2) was foreclosed by circuit law at the time of his trial, direct appeal, or first

§

2255

motion."82

The first prong of the test is, essentially, an "actual innocence" requirement whose "core

idea is that the petitioner may be have been imprisoned for conduct which was not prohibited by
law."83

Awwad's claim challenging the legal standard applied by the Fourth Circuit in reviewing

his § 2255 motion fails to satisfy the first prong. He has not alleged or shown that he "was

convicted of a nonexistent offense," and his claim "has no effect on whether the facts of his case
would support his conviction for the substantive

offense."84

Further, Buck, decided on February 22, 2017, did not announce a new rule made

retroactively applicable to cases on collateral review. The Supreme Court relied on and cited

extensively its 2003 opinion in Miller-El in Buck.85 Miller-El made it clear that "a COA ruling is
not the occasion for a ruling on the merit of petitioner's claim."86

Finally, the Court finds the Fourth Circuit applied the correct legal standard when it denied

81

Kinder, 222 F.3d at 212.

82

Strother

83

Reyes-Requena, 243 F.3d at 903.

84

Padilla, 416 F.3d at 427 (emphasis added).

85

Buck, 137 S. Ct. at 773 (citing

86

Miller-El, 537 at 331.

v.

Blackmon, No. 16-60539, 2017 WL 2870993, at *1(5th Cir. July 5,2017).

MillerEl, 537 U.S. at 327, 336-37).

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Awwad a certificate of appealability.87
The Court concludes, therefore, that Awwad's claim does not meet the stringent

requirements of the § 2255(e) "savings clause." The Court will not allow Awwad to proceed
under § 2241.

CONCLUSION AND ORDERS
As stated above, 28 U.S.C. § 2241 and 2255 do not provide authority for the Court to

address Awwad's claims. The Court will, therefore, dismiss his § 224 Ipetition as frivolous, and,
to the extent his petition may be construed as a § 2255 motion, the Court will dismiss his motion

for lack

ofjurisdiction.88

Accordingly, the Court enters the following orders:

IT IS ORDERED that Petitioner Mostafa Ahmed Awwad' s pro se "Petition for Section
2241 Habeas Corpus Pursuant to Denial

of Access to the Courts [and] Subsection ... 2255(2)" is

DISMISSED WIThOUT PREJUDICE.

IT IS FURTHER ORDERED that all pending motions in this cause, if any, are DENIED
AS MOOT.

IT IS ALSO ORDERED that to the extent Petitioner Mostafa Ahmed Awwad's §
224 ipetition is construed as a successive § 2255 motion, he is denied a CERTIFICATE OF
APPEALABILITY.89

IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
87

Opinion, May 26, 2017, ECF No. 96.

88

Ojo, 106 F.3d at 683.

89

See 28 U.S.C. foll. § 2255 R. 11(a) ("The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.").

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SO ORDERED.

SIGNED this

ay of August, 2017.
f2

/

DAVI C. GUAbERRAMA
UNITED STATES DISTRICT JUDGE

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