Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

El-Amin v. United States

United States District Court, S.D. West Virginia, Bluefiled Division

March 2, 2018

SALEEM EL-AMIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn United States Magistrate Judge

         Pending before the Court are the following: (1) Petitioner's Application to Proceed in Forma Pauperis (Document No. 2); (2) Petitioner's Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody (Document No. 1); and (3) Petitioner's Emergency Motion for Release (Document No. 12).[1] By Standing Order, this matter was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for deposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 6.)

         FACT AND PROCEDURE

         A. Underlying Criminal Conviction:

         On May 7, 2014, Petitioner was charged in the Superior Court of the District of Columbia with one count of armed robbery in violation of D.C. Code §§ 22-4502 and 22-2801. El-Amin v. Downs, 272 F.Supp.3d 147 (D.D.C. Aug. 9, 2017); El-Admin v. Virgilio, 251 F.Supp.3d 208 (D.D.C. May 5, 2017); El-Amin v. United States, 2016 WL 2866862 (May 11, 2016). On July 8, 2014, the grand jury returned a superseding indictment adding one count of assault with a dangerous weapon (“ADW”) in violation of D.C. Code § 22-402. Id. During the jury trial, the trial judge dismissed the separate ADW charge after determining that ADW was simply a lesser included offense of armed robbery. Id. The trial judge further declined defense counsel's request to instruct the jury on the ADW charge. Id. On September 16, 2014, the jury convicted Petitioner of armed robbery. Id. On November 14, 2014, Petitioner was sentenced to ten years imprisonment. Id.

         Petitioner appealed his conviction to the District of Columbia Court of Appeals. In his brief filed by Joseph Virgilio, Petitioner argued as follows: (1) Petitioner's “Fifth Amendment right to due process was violated when the trial court relied upon unreliable information as to [Petitioner's] criminal history;” (2) “The trial court erred when it (i) failed to conduct a presentence inquiry into [Petitioner's] claims of ineffective assistance of trial counsel and (ii) when it failed to appoint new counsel to represent [Petitioner] after a conflict of interest became apparent;” and (3) “The trial court abused its discretion in summary denying [Petitioner's] pro se motions for new trial without reading the motions or conducting a hearing.” (Document No. 8, pp. 8 - 9.) In his supplemental brief filed by April Fearnley, Petitioner argued as follows: (1) “The court erred in striking the ADW from the charged indicted offenses for jury consideration;” (2) “The court erred in removing ADW from trial as a lesser included offense instruction when requested by the defense;” (3) “Additional facts and arguments that criminal history was not sufficiently reliable for the court to rely upon in sentencing;” and (4) “The court erred in upwardly departing from the sentencing guidelines based upon gratuitous violence as the sentence is grossly disproportionate to the crime and contravenes the cruel and unusual punishment clause of the Eighth Amendment.” (Document No. 1., p. 21.) The District of Columbia Court of Appeals affirmed Petitioner's conviction on May 11, 2017. Elamin v. United States, 164 A.3d 118 (D.C. Ct. App. May 11, 2017).

         B. Instant Section 2241 Petition:

         On September 11, 2017, Petitioner filed in the United States District Court for the District of Columbia his instant Section 2241 Petition. (Document No. 1.) In his Petition, Petitioner challenges the validity of his conviction in the Superior Court of the District of Columbia. (Id.) Petitioner argues that Section 23-110 is ineffective to challenge his conviction based upon the following: (1) A federal court's jurisdiction is not defeated by any State proceedings;” (2) The District of Columbia Court of Appeals “lacked jurisdiction absent jurisdiction statement in appellant brief;” and (3) Petitioner wishes to asserts a claim of ineffective assistance of appellate counsel. (Id., pp. 11 - 12.) As grounds for habeas relief, Petitioner asserts as follows: (1) “The District of Columbia Court of Appeals was without jurisdiction to hear my appeal absent jurisdiction statement in appellant brief;” (2) “Conspiracy to deprive [Petitioner] of due process of the Sixth Amendment right to a jury trial in violation of 18 U.S.C. 241;” (3) “Failure to prove beyond reasonable doubt the ADW element of armed robbery;” (4) “Violation of due process in violation of 18 U.S.C. 242;” (5) “Ineffective assistance;” and (6) “Jurisdiction.” (Id., p. 1.) In support, Petitioner first argues that “[o]n 9/15/2014 the District of Columbia Judge for the Superior Court removed the ADW from jury fact-finding duty in violation of [his] Sixth Amendment right to a jury trial which is prohibited by 18 U.S.C. 242.” (Id., p. 2.) Second, Petitioner states that his appellate counsel “failed to utilize a jurisdiction statement in the appellant brief filed on June 17, 2016.” (Id., pp. 2, 8 - 9, 11.) Petitioner, therefore, concludes that the District of Columbia Court of Appeal was without jurisdiction to hear Petitioner's appeal due to the lack of a “jurisdiction statement utilizing D.C. Code 11-721 mandated by D.C. App. R. 28.” (Id.) Third, Petitioner appears to argue that the AUSA conspired to violate Petitioner's due process rights in violation of 18 U.S.C. 241. (Id., pp. 5 - 6.) Petitioner explains the AUSA conspired to violate his due process rights when the AUSA agreed with the “Superior Court Judge to remove ADW from jury consideration.” (Id., p. 6.) Fourth, Petitioner argues that the Superior Court Judge violated his constitutional rights because “there is no such rule allowing the Superior Court Judge William Jackson to apply the law to those facts and render the ultimate verdict of guilty or not guilty on the assault with a dangerous weapon offense.” (Id., p. 7.) Fifth, Petitioner argues that “ADW is an element of armed robbery” and “the government failed to meet its burden of proof because Judge William Jackson dismissed the ADW count necessary to prove armed robbery.” (Id., p. 8.) Sixth, Petitioner argues that appellate counsel was ineffective when she “omitted that it was plain error under Rule 52(b) for the Superior Court Judge to violate [his] due process rights when he removed the ADW from the jury's constitutional role of deciding innocence or guilt.” (Id., p. 10.) Petitioner, therefore, concludes he is entitled to habeas relief. (Id.)

         As Exhibits, Petitioner attaches the following: (1) A copy of pertinent pages from Petitioner's trial transcripts (Id., pp. 14 - 17.); and (2) A copy of pertinent pages from the “Supplemental Brief for Appellant” (Id., pp. 19 - 22.).

         By Order entered on October 19, 2017, the United States District Court for the District of Columbia note that Petitioner was incarcerated within the Southern District of West Virginia and transferred the matter to this Court. (Document Nos. 4 and 5.)

         On February 1, 2018, Petitioner filed a Supplement to this Section 2241 Petition. (Document No. 8.) Specifically, Petitioner first argues that “the District of Columbia Court of Appeals abused it's discretion when it denied the appellant's recall of mandate” on January 17, 2018. (Id., pp. 1 and 3.) Next, Petitioner continues to assert the same arguments as asserted in his original Section 2241 Petition. (Id., pp. 2 - 3.) As Exhibits, Petitioner attaches the following: (1) A copy of an Order from the District of Columbia Court of Appeal filed January 17, 2018 denying Petitioner's motion to recall mandate[2] (Id., p. 6.); (2) A copy of pertinent pages from Petitioner's “Brief and Appendix for Appellant” as filed in the District of Columbia Court of Appeals on November 23, 2015 (Id., pp. 8 - 9.)

         On February 6, 2018, Petitioner filed his “Brief for Petitioner.” (Document No. 9.) In addition to the same arguments set forth in his original Petition, Petitioner challenges the validity of his conviction arguing “duplicitous indictment and improper venue.” (Id., pp. 1 - 12.) As Exhibits, Petitioner attaches the following: (1) A copy of pertinent pages from Petitioner's “Brief and Appendix for Appellant” as filed in the District of Columbia Court of Appeals on November 23, 2015 (Id., pp. 13 - 14.); and (2) A copy of Petitioner's “Prior Criminal Record” (Id., p. 17.).

         On February 12, 2018, Petitioner filed his “Memorandum in Aid of Section 2241.” (Document No. 10.) Specifically, Petitioner argues that appellate counsel was ineffective based upon the following: (1) Counsel's failure “to argue meritorious claims involving constitutional error not allowing the jury to deliberate on ADW when giving only the armed robbery instruction;” and (2) Counsel's failure “to argue improper indictment on duplicitous count 2 and improper venue on both counts.” (Id.)

         On February 26, 2018, Petitioner filed his “Emergency Motion” requesting that the Court order Petitioner's release from custody.” (Document No. 12.) In support, Petitioner argues that there was an “absence of a jurisdiction statement mandated by D.C. App. R. 28(a)(5)” in his appellant brief and the District of Columbia Court of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.