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Muhammad v. United States

United States District Court, D. Connecticut

September 11, 2017

LUT MUHAMMAD, Petitioner,



         Petitioner Lut Muhammad (“Muhammad”), proceeding pro se, has moved pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. He makes two arguments. First, he argues that his 240-month sentence was unconstitutional because the grand jury never indicted him based on the new cocaine base quantities enacted as part of the Fair Sentencing Act (“FSA”). Second, he argues that his counsel was ineffective for not raising this claim prior to sentencing. For the reasons set forth below, the motion is being denied without a hearing.


         On December 2, 2009, a federal grand jury returned an Indictment against Muhammad and sixteen others charging various narcotics offenses.[1] The defendant was arrested on December 3, 2009. In February 2010, after some of the defendants had pleaded guilty to the charges in the original Indictment, the grand jury returned a Superseding Indictment against the defendant, the remaining co-defendants, and two new co-defendants. In July 2010, the grand jury returned a twelve-count Second Superseding Indictment against the defendant and four remaining co-defendants. The Second Superseding Indictment charged the defendant with one count of conspiracy to possess with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846; with six counts of possession with intent to distribute or distribution of 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); and with four counts of distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

         Subsequently, the government filed a second offender notice as to the defendant, listing five separate prior felony drug convictions as potential qualifiers for enhanced penalties under 21 U.S.C. § 841(b). On September 7, 2010, the defendant pleaded guilty to each count against him in the Second Superseding Indictment. At the time of the guilty plea, the defendant entered into a written plea agreement. The parties did not stipulate to quantity as part of the plea agreement. Other than the government's agreement to recommend a three-level reduction for acceptance of responsibility, the parties did not enter into a Guidelines stipulation.

         The Pre-Sentence Report (“PSR”) found that the defendant had 20 criminal history points and thus was in Criminal History Category VI. The PSR also found that the defendant's conduct involved between 2.8 and 8.4 kilograms of cocaine base, and consequently, that his base offense level was 36. The total offense level was 33 after a three level reduction for acceptance of responsibility. At a total offense level of 33 and Criminal History Category VI, the advisory guideline incarceration range was 235 to 293 months.

         The defendant objected to the drug quantity, and the court held an evidentiary hearing to determine the quantity of crack cocaine attributable to the defendant. At the conclusion of the evidentiary hearing, the government argued that the defendant was responsible for distributing in excess of 2.8 kilograms of crack cocaine, and the defendant contended that the quantity was 2.702 kilograms.

         At sentencing the court confirmed, and the parties agreed, that the new FSA penalties would apply so that, based on the defendant's most serious offense of conviction, i.e. conspiracy to distribute 50 grams or more of crack cocaine, and the filing of the second offender notice, he faced a mandatory minimum penalty of 10 years under 21 U.S.C. § 841(b)(1)(B), instead of 20 years under 21 U.S.C. § 841(b)(1)(A). The court also overruled the defendant's objection to the second offender notice. In addition, the court found, with respect to quantity, that the government had established by a preponderance of the evidence that 2.8 kilograms of cocaine base should be attributed to the defendant. The court imposed a sentence of 240 months of incarceration and eight years of supervised release.

         The defendant appealed, challenging his sentence on two grounds. First, he argued that the court erred in finding that the quantity of crack cocaine attributable to the defendant was between 2.8 and 8.4 kilograms. Second, he argued that the quantity finding should have been made by a jury, not the court, and that the fact that no grand jury or jury had made the necessary quantity findings under the newly amended crack cocaine guidelines under the FSA meant that the court could not apply the statutory mandatory minimum penalties under 21 U.S.C. § 841(b)(1)(B). The defendant's arguments were rejected in an unpublished summary order. See United States v. Muhammad, 520 Fed.Appx. 31 (2d Cir. 2013).


         Federal prisoners can challenge a criminal sentence pursuant to 28 U.S.C. § 2255 only in limited circumstances.

[A] “collateral attack on a final judgment in a criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes ‘a fundamental defect which inherently results in complete miscarriage of justice.'”

Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996) (citing United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).

[N]ot “every asserted error of law can be raised on a § 2255 motion.” See Davis v. United States, 417 U.S. 333, 346 (1974) . . . . The grounds provided in section 2255 for collateral attack on a final judgment in a federal criminal case are narrowly limited, and it has “long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” United States v. Addonizio, 442 U.S. 178, 184 (1979) . . .

Napoli v. United States, 32 F.3d 31, 35 (2d Cir. 1994), amended on reh'g on other grounds, 45 F.3d 680 (2d Cir. 1995). Constitutional errors will not be corrected through a writ of habeas corpus unless they have had a “substantial and injurious effect, ” that is, unless they have resulted in “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 623, 637-38 (1993); see also Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying Brecht to § 2255 motions).

         “A § 2255 motion may not relitigate issues that were raised and considered on direct appeal.” United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997) (declined to review plea withdrawal claim that had already been argued on appeal). This “so-called mandate rule bars re-litigation of issues already decided on direct appeal.” Yick Man Mui v. United States, 614 F.3d 50, 54 (2d Cir. 2010)(citation omitted). “The mandate rule prevents re-litigation in the district court not only of matters expressly decided by the appellate court, but also precludes re-litigation of issues impliedly resolved by the appellate court's mandate.” Yick Man Mui, 614 F.3d at 53.

         “[F]ailure to raise a claim on direct appeal is itself a default of normal appellate procedure, which a defendant can overcome only by showing cause and prejudice.” Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). This rule is applied because of concerns about “finality, accuracy and the integrity of prior proceedings, as well as concerns of judicial economy.” Id. “[C]ollateral review of convictions ‘places a heavy burden on scarce judicial resources, may give litigants incentives to withhold claims for manipulative purposes, and may create disincentives to present claims when evidence is fresh.'” Id. (quoting Keeney v. Tamayo Reyes, 504 U.S. 1, 7 (1992)).

         To obtain review of procedurally defaulted claims, the petitioner must show both “cause” for the default of each claim and “prejudice” that resulted from the alleged violation. See Ciak v. United States, 59 F.3d 296, 301, 302 (2d Cir. 1995), abrogated on other grounds by Mickens v. Taylor, 535 U.S. 162, 172 n.3 (2002) (quoting Wainwright v. Sykes, 433 U.S. 72, 87 (1977)). “Where the petitioner--whether a state or federal prisoner--failed properly to raise his claim on direct review, the writ is available only if the petitioner establishes ‘cause' for the ...

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