El-Amin v. United States of America

Filing 41

MEMORANDUM OPINION AND ORDER: The court OVERRULES petitioner's 19 Objections to the PF&R; ADOPTS the factual and legal analysis contained within the 16 PF&R by Magistrate Judge Omar J. Aboulhosn; DISMISSES without prejudice petitioner' s 1 Petition for Writ of Habeas Corpus (2241); DENIES petitioner's 2 Application to Proceed In Forma Pauperis; DENIES petitioner's 12 Emergency Motion for Release and DIRECTS the Clerk to dismiss this matter from the court's dock et. The court DENIES a certificate of appealability. Since the PF&R's 3/2/2018 issuance, petitioner has filed a flurry of motions, which the court liberally describes as follows: petitioner's 18 Motion to Amend His Complaint, petitioner&# 039;s 24 Motion for an Evidentiary Hearing to Question Defendant's Appellate Counsel, petitioner's 25 Emergency Motion for Expeditious Disposition of Petitioner's Motion to Amend, petitioner's 26 Motion to Correct Statutory Errors in Petitioner's Proposed Amended Complaint, petitioner's 28 Second Motion to Expedite, and petitioner's 36 Motion for Leave to File a Second Amended Complaint. The court DENIES each of these motions. The court notes that its dismissal is without prejudice, leaving petitioner free to bring the Proposed Amended Petition before this court in a subsequent action. Signed by Senior Judge David A. Faber on 6/5/2018. (cc: petitioner, pro se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

SALEEM EL-AMIN,
Petitioner,
v.

CIVIL ACTION NO. 1:17-04480

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court are petitioner’s (1) petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241, (ECF No.
1); (2) application to proceed in forma pauperis, (ECF No. 2);
and (3) emergency motion for release, (ECF No. 12).

By Standing

Order, this matter was referred to United States Magistrate
Judge Omar J. Aboulhosn for submission of proposed findings and
recommendations for disposition pursuant to 28 U.S.C.
636(b)(1)(b).

ECF No. 6.

The magistrate judge submitted his

proposed findings and recommendation (“PF&R”) on March 2, 2018.
ECF No. 16.

In the PF&R, Judge Aboulhosn recommended that the

court dismiss petitioner’s petition for a writ of habeas corpus;
deny petitioner’s application to proceed in forma pauperis; and
deny petitioner’s emergency motion for release.

In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days, plus three mailing days,
in which to file any objections to the PF&R.
filed objections to the PF&R on March 9, 2018.

Petitioner timely
ECF No. 19.

Because petitioner’s objections are without merit, the court
dismisses his petition.
I.

BACKGROUND

In May 2014, Saleem El-Amin was indicted on charges of
armed robbery in the Superior Court of the District of Columbia.
In July, the grand jury returned a superseding indictment,
charging him with a second count of assault with a deadly weapon
(“ADW”).

In September, a jury trial was held before Judge

William M. Jackson in the Superior Court of the District of
Columbia.

After the trial, Judge Jackson dismissed the ADW

charge, determining that this offense was encapsulated within
the offense of armed robbery.

Additionally, Judge Jackson

declined defense counsel’s request to instruct the jury on the
ADW charge.
On November 14, 2014, petitioner was convicted of armed
robbery and sentenced to ten (10) years imprisonment.

El-Amin

v. United States, 2016 WL 2866862 (May 11, 2016); see also ElAmin v. Downs, 272 F. Supp. 3d 147 (D.D.C. Aug. 9, 2017).

On

May 11, 2017, the District of Columbia Court of Appeals affirmed

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the conviction.

Elamin v. United States, 164 A.3d 118 (D.C. Ct.

App. May 11, 2017).
Petitioner filed the instant petition seeking relief under
28 U.S.C. § 2241 on September 11, 2017, 1 challenging the validity
of his conviction.

ECF No. 1.

As grounds for relief,

petitioner asserts that (1) the District of Columbia Court of
Appeals did not have jurisdiction because the government failed
to file a “jurisdictional statement;” (2) “Conspiracy to deprive
[petitioner] of due process of the Sixth Amendment right to a
jury trial;” (3) “Failure to prove beyond reasonable doubt the
ADW element of armed robbery;” (4) “Violation of due process in
violation;” (5) “Ineffective assistance” of counsel; and (6)
lack of “[j]urisdiction.”

ECF No. 1 at p.1.

Petitioner also

argues that D.C. Code § 23-110, a sister statute and functional
equivalent to 28 U.S.C. § 2255 discussed infra, is ineffective
to challenge the petitioner’s conviction because (1) a federal
court’s jurisdiction is not defeated by state proceedings; (2)
the District of Columbia Court of Appeals “lacked jurisdiction
absent jurisdictional statement in appellant brief;” and (3)
ineffective assistance of appellate counsel.

1

Id. at pp. 11-12.

The petition was originally filed in the United States District
Court for the District of Columbia and later transferred to this
court due to petitioner’s incarceration at FCI McDowell, located
in Welch, West Virginia. ECF No. 4.
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II.

PETITIONER’S OBJECTIONS

The magistrate judge concluded that the claims raised by
petitioner fail to demonstrate that D.C. Code § 23-110 is
inadequate or ineffective to allow petitioner to claim relief
under 28 U.S.C. § 2241.

Specifically, petitioner failed to

allege any intervening change in the law that establishes his
innocence.

ECF No. 16 at p.8; In re Jones, 226 F.3d 328, 333-34

(4th Cir. 2000).
Petitioner’s only objection to the PF&R is that “the acquired
rights doctrine grants me the Bill of Right Sec. 1 to writ of
habeas corpus and cannot be reduced by legislation of [D.C. Code
§] 23-110.”

ECF No. 19 at p.2.
III. DISCUSSION

The acquired rights doctrine is defined by Black’s Law
Dictionary as “the principle that once a right has vested, it
may not be reduced by later legislation.”
Dictionary 28 (10th ed. 2014).

Black’s Law

The basis of petitioner’s

objection is difficult to fully grasp, nevertheless, the court
construes it as an objection to the application of D.C. Code §
23-110 instead of a writ of habeas corpus under 28 U.S.C. §
2255.

Even though petitioner makes no attempt to remedy his

failure to assert any intervening change in the law establishing
his innocence, as required by In re Jones in order to seek
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redress under 28 U.S.C. § 2241, the court briefly compares the
protections embodied in D.C. Code § 23-110 and 28 U.S.C. § 2255.
While federal criminal defendants may seek habeas corpus
relief under 28 U.S.C. § 2255, a petitioner convicted under the
laws of the District of Columbia may only seek to invalidate his
conviction under D.C. Code § 23-110.

D.C. Code § 23-110(g),

written almost identically to 28 U.S.C. § 2255(g), 2 reads as
follows:
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 by the Superior Court or by any Federal or
State court if it appears that the applicant has
failed to make a motion for relief under this section
or that the Superior 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.
The District of Columbia Court of Appeals has recognized
that D.C. Code § 23-110 “is nearly identical and functionally
equivalent to [28 U.S.C.] § 2255,” and courts may “rely on cases
construing the federal rule” when applying and interpreting D.C.
Code § 23-110.

Butler v. United States, 388 A.2d 883, 886 n.5

2

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.
28 U.S.C. § 2255(e).
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(D.C. Cir. 1978); see also United States v. Hurt, 946 F.2d 887,
887 (4th Cir. 1991) (unpublished) (“D.C. Code Ann. § 23-110 [is]
the District’s equivalent to 28 U.S.C. § 2255”).
As it relates to this case, to allow a petitioner to pursue
relief pursuant to 28 U.S.C. § 2241, both D.C. Code § 23-110 and
28 U.S.C. § 2255 require that the petitioner must demonstrate
that the respective statute “is inadequate or ineffective to
test the legality of his detention.”

See Whitlow v. Tripp, 587

F. App’x. 74, 74 (4th Cir. 2011) (per curium) (“Because
[petitioner] is in custody pursuant to a sentence imposed by the
Superior Court of the District of Columbia, the district court
may not entertain [petitioner’s] § 2241 petition . . . unless it
appears that a [D.C. Code] § 23-110 motion would be inadequate
or ineffective to test the legality of his detention.”).
Accordingly, petitioner is afforded the same legal rights under
D.C. Code § 23-110, as he would have under 28 U.S.C. § 2255 had
he been convicted in federal court.
Nevertheless, 28 U.S.C. § 2241 provides a remedy for
prisoners only in two circumstances: (1) to challenge the
execution of a criminal sentence, or (2) to test the legality of
a detention when 28 U.S.C. § 2255 (or D.C. Code § 23-110) is
otherwise inadequate.

The latter is at issue here.

As stated

in the PF&R, the Fourth Circuit applies a three-part test to

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determine whether 28 U.S.C. § 2241 applies.

The court stated in

In re Jones that:
§ 2255 is inadequate and ineffective to test the legality
of a conviction when: (1) at the time of conviction,
settled law of this circuit or the Supreme Court
established the legality of the conviction; (2) subsequent
to the prisoner's direct appeal and first § 2255 motion,
the substantive law changed such that the conduct of which
the prisoner was convicted is deemed not to be criminal;
and (3) the prisoner cannot satisfy the gatekeeping
provisions of § 2255 because the new rule is not one of
constitutional law.
226 F.3d at 333–34.
Petitioner’s petition and objections to the PF&R do not
include any rationale as to why this case meets this standard.
Petitioner fails to point to any recent substantive law change
under which the conduct for which he was convicted – armed
robbery – is no longer criminal.

Accordingly, the petition may

not be considered under 28 U.S.C. § 2241 and must be dismissed.
IV.

CONCLUSION

Accordingly, the court OVERRULES petitioner’s objection to
the magistrate judge’s PF&R. 3

The court ADOPTS the factual and

3

Since the PF&R’s March 2, 2018 issuance, petitioner has filed a
flurry of motions, which the court liberally describes as
follows: (1) petitioner’s motion to amend his complaint, (ECF
No. 18); (2) petitioner’s motion for an evidentiary hearing to
question defendant’s appellate counsel (ECF No. 24); (3)
petitioner’s emergency motion for expeditious disposition of
petitioner’s motion to amend, (ECF No. 25); (4) petitioner’s
motion to correct statutory errors in petitioner’s proposed
amended complaint, (ECF No. 26); (5) petitioner’s second motion
to expedite, (ECF No. 28); and (6) petitioner’s motion for leave
to file a second amended complaint, (ECF No. 36). The court
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legal analysis contained within the PF&R, DISMISSES petitioner’s
petition for a writ of habeas corpus without prejudice, (ECF No.
1); DENIES petitioner’s application to proceed in forma
pauperis, (ECF No. 2); DENIES petitioner’s emergency motion for
release, (ECF No. 12); and DIRECTS the clerk to dismiss this
matter from the court’s docket.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly, the

court DENIES a certificate of appealability.

DENIES each of these motions. The court notes that its
dismissal is without prejudice, leaving petitioner free to bring
the proposed amended petition before this court in a subsequent
action.
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The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and
petitioner, pro se.
It is SO ORDERED this 5th day of June, 2018.
ENTER:
David A. Faber
Senior United States District Judge

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