United States District Court, D. Connecticut
RULING ON MOTION TO VACATE, SET ASIDE OR CORRECT
W. THOMPSON, UNITED STATES DISTRICT JUDGE.
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.
FACTUAL AND PROCEDURAL BACKGROUND
December 2, 2009, a federal grand jury returned an Indictment
against Muhammad and sixteen others charging various
narcotics offenses. 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).
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
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
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.
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.
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).
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
§ 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.
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)).
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 ...