Bishawi v. U.S.
| Decision Date | 24 November 2003 |
| Docket Number | No. 03-4121.,03-4121. |
| Citation | 292 F.Supp.2d 1122 |
| Court | U.S. District Court — Southern District of Illinois |
| Parties | Ahmad BISHAWI, Petitioner, v. UNITED STATES of America, Respondent. |
Ahmad Bishawi, Rivers Correctional Institution, Winton, NC, pro se.
Patty Merkamp Stemler, U.S. Department of Justice, Appellate Section, Crim. Div., Washington, DC, for Respondent.
A § 2255 petition.
This is Petitioner's latest foray in his lengthy excursion in the federal court system.
And, the Sixth Amendment mandates that Petitioner be allowed to continue his odyssey.
Petition allowed.
On January 19, 1999, a jury found Ahmad Bishawi guilty of conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and § 846 and 18 U.S.C. § 2. On October 1, 1999, the late United States District Judge Paul E. Riley sentenced Bishawi to 240 months of imprisonment.
That same day, Bishawi filed a notice of appeal from his conviction and sentence. While his appeal was pending before the United States Court of Appeals for the Seventh Circuit, Bishawi's counsel received notification from (then Chief) United States District Judge J. Phil Gilbert that Judge Riley may have had ex parte communications with the jury during its deliberations in Bishawi's case. Based upon a motion by Bishawi's attorney, the Seventh Circuit issued a general remand to the district court for further proceedings based upon the information subsequently learned regarding Judge Riley's conduct during the trial. Specifically, the Seventh Circuit stated:
This appeal is REMANDED to the district court for further proceedings. The parties are reminded that a new notice of appeal must be filed by any party dissatisfied with the judgment following the additional proceedings. The mandate in this appeal shall issue forthwith.
Thereafter, Bishawi's case was assigned to this Court for further proceedings.
After his case had been remanded to this Court, Bishawi filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. On August 28, 2000, the Court allowed Bishawi's motion and granted his request for a new trial. United States v. Bishawi, 109 F.Supp.2d 997 (S.D.Ill.2000). However, the Seventh Circuit vacated this Court's Opinion granting Bishawi a new trial and remanded the case for further proceedings. United States v. Bishawi, 272 F.3d 458 (7th Cir. 2001). Specifically, the Seventh Circuit opined:
The holding of an evidentiary hearing in this case would have afforded the parties an opportunity to interview jurors and determine "whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Fed. R.Evid. 606. Once these factual determinations were made, the trial court would have been equipped to adequately assess the impact of any ex parte contacts on the juries before whom appellees' cases were tried and decided whether or not such communications were harmless error.... The trial court abused its discretion in failing to hold such a hearing.
After receiving the mandate, the Court conducted an evidentiary hearing as directed by the Seventh Circuit. At this hearing, the Court heard testimony from the jurors who deliberated and found Bishawi guilty of conspiring to distribute cocaine and cocaine base. In addition, the parties asked the Court to re-evaluate and re-consider the affidavits of court personnel which had previously been submitted to the Court.
On February 25, 2002, the Court denied Bishawi's motion for a new trial after concluding that any ex parte communications which Judge Riley had with the jurors did not affect the outcome of his case. United States v. Bishawi, 186 F.Supp.2d 889 (S.D.Ill.2002). On July 5, 2002, the Seventh Circuit affirmed this Court's denial of Bishawi's motion for a new trial. United States v. Bishawi, 40 Fed.Appx. 272 (7th Cir.2002). In affirming this Court's decision, the Seventh Circuit opined:
This is the third and final appeal in Ahmad Bishawi's criminal prosecution.... While his initial appeal (No. 99-3589) was pending, Judge Riley, who had presided at his trial, retired, and Chief Judge Gilbert informed counsel in all of Judge Riley's recent cases that there was a chance that Judge Riley had engaged in improper ex parte contacts with jurors. Bishawi filed a motion under Fed.R.Crim.P. 33 based on this disclosure, and at Bishawi's request we remanded No. 99-3589 on February 16, 2000, so that all options would be open to the district court and a single subsequent appeal would present all issues.
* * *
Bishawi's current appeal is from the conviction and sentence, now made final by the denial of his motion for a new trial. But he does not raise any objection to the conviction or sentence, other than to contend that the original new-trial order should have been allowed to stand.
* * *
This leaves only Bishawi's contention that he is entitled to retrial whether or not the ex parte contacts had any potential to affect his substantial rights. That argument is unavailing for the reasons given by our opinion last year and by the district judge's opinion on remand.
Id. at 273-74. Bishawi did not seek a review of this decision by the United States Supreme Court.
On July 25, 2003, Bishawi filed another notice of appeal. In this notice of appeal, Bishawi expressed his desire to appeal "the conviction entered on January 19, 1999, and the sentence entered by Judge Paul E. Riley on October 1, 1999." In dismissing this appeal, the Seventh Circuit held:
Defendant filed a pro se notice of appeal on July 25, 2002, "from the conviction entered on January 19, 1999 and the sentence entered ... on October 1, 1999." Defendant's conviction and sentence, however, did not become final (and appealable) until the district court denied defendant's motion for a new trial on February 25, 2002. See order of July 9, 2002, in Appeal No. 02-1584. The present appeal, therefore, is over four months late and is DISMISSED as untimely.
Bishawi has now filed the instant petition, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his conviction and/or sentence. Therein, Bishawi raises seven grounds which he asserts entitles him to the relief which he seeks:
• The Government failed to prove, beyond a reasonable doubt, that he conspired to distribute crack cocaine.
• The Indictment returned against him failed to specify the amount of drugs which he allegedly conspired to distribute, and the Government failed to prove, beyond a reasonable doubt, the amount of drugs involved in the alleged conspiracy.
• The Government failed to offer sufficient evidence with which a reasonable jury could find him guilty, beyond a reasonable doubt, of all of the essential elements of the charged offense because there was a substantial variance between the Indictment and the evidence offered at trial.
• The district court committed reversible error in admitting his fraudulent and illegally obtained confession and also erred in allowing FBI Agent Robert Shay to offer perjurious testimony.
• The United States District Court for the Southern District of Illinois lacked subject matter jurisdiction in this case.
• He was denied his Sixth Amendment right to a speedy trial.
• He received ineffective assistance of counsel in violation of his Sixth Amendment right.1
The Government argues that Bishawi did not receive ineffective assistance of counsel during the pre-trial stages, during the trial, or during his sentencing hearing. Accordingly, the Government asks the Court to make a finding that Bishawi did not receive ineffective assistance of counsel during any of the district court proceedings and asks the Court to deny Bishawi's § 2255 petition as to this ground.
However, the Government concedes that Bishawi received ineffective assistance of counsel on appeal. Based upon this concession, the Government asks the Court to vacate and, then, immediately reimpose Bishawi's conviction and sentence, thereby giving him ten days within which to file a notice of appeal in order to challenge, on direct appeal, his conviction and sentence. Finally, the Government asks the Court to deny Bishawi's first six grounds proffered in support of his § 2255 petition as being premature in light of its concession that Bishawi's counsel's actions deprived him of his appellate rights.
Ordinarily, claims not raised on appeal are procedurally defaulted. Barker v. United States, 7 F.3d 629, 632 (7th Cir. 1993). "A § 2255 petition is not a substitute for direct appeal." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.1996), citing Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir.1989). Procedurally defaulted constitutional claims may only be raised for the first time in a collateral attack if the petitioner can show cause for the procedural default and prejudice from the failure to appeal. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir.1996). If a petitioner is unable to demonstrate both cause and prejudice, a petitioner may be able to obtain collateral review only if he can persuade the court that the dismissal of his petition would result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
In the instant case, Bishawi did not raise any of his seven tendered grounds in support of his § 2255 petition—including his claim of ineffective assistance of counsel— on direct appeal. Accordingly, Bishawi must satisfy the cause and prejudice standard.
A claim of ineffective assistance of counsel can satisfy the cause component necessary to overcome procedural default. Fern v. Gramley, 99 F.3d 255, 259 n. 4 (7th Cir.1996). Moreover, whether a claim of ineffective assistance is raised on direct appeal, in a motion for a new...
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