Dhinsa v. Krueger

• Decision Date: 20 February 2019
• Docket Number: August Term, 2017,Docket No. 17-874-pr
• Citation: 917 F.3d 70
• Parties: Gurmeet Singh DHINSA, Petitioner-Appellant, v. J. E. KRUEGER, as Warden of FCI Schuylkill, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

917 F.3d 70

Gurmeet Singh DHINSA, Petitioner-Appellant,

v.J. E. KRUEGER, as Warden of FCI Schuylkill, Respondent-Appellee.

Docket No. 17-874-pr

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: March 7, 2018

Decided: February 20, 2019

Marc Fernich (Giuliana Graham, on the brief ), Law Office of Marc Fernich, New York, NY, for Petitioner-Appellant.

Nicholas J. Moscow (James D. Gatta, Jo Ann M. Navickas, Assistant United States Attorneys, on the brief ), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Respondent-Appellee.

Before: Cabranes, Carney, Circuit Judges, and Vilardo, District Judge.^*

Susan L. Carney, Circuit Judge:

Petitioner-appellant Gurmeet Singh Dhinsa appeals from a judgment entered in the United States District Court for the Eastern District of New York (Edward R. Korman, Judge ) denying his petition for a writ of habeas corpus. Dhinsa claims that he is entitled to bring a petition under 28 U.S.C. § 2241 because the standard remedies under 28 U.S.C. § 2255 are "inadequate or ineffective to test the legality of his detention," thereby entitling him to invoke the "savings clause" codified in 28 U.S.C. § 2255(e).

In 1999, a jury convicted Dhinsa on numerous counts arising out of his leadership role in an extensive racketeering enterprise, including two counts of murdering a potential witness or informant in violation of 18 U.S.C. § 1512(a)(1)(C) ("informant murder").¹ He is now serving six concurrent life sentences, including a life term on each count of informant murder. In his habeas petition, he challenges only those two convictions, and so the relief he seeks would not affect the length of his incarceration. This circumstance raises the question whether he has standing to maintain his petition. We conclude that he does, in light of the $100 special assessment that attaches to each of the challenged convictions. If Dhinsa’s challenge is successful as to either conviction, he may be entitled to vacatur of the corresponding sentence, including the special assessment. Although the special assessments are slight in amount, we think that each is a concrete, redressable injury sufficient to establish Dhinsa’s Article III standing to challenge these two convictions.

Having confirmed Dhinsa’s constitutional standing to assert the petition, we next consider whether Dhinsa is entitled to bring a § 2241 habeas petition under the § 2255(e) savings clause. A petitioner who invokes the savings clause must demonstrate, on the existing record, that he is innocent of the crime of conviction under a legal theory that was not previously available to him. Here, Dhinsa asserts that he is innocent of both counts of informant murder under the Supreme Court’s decision in Fowler v. United States , 563 U.S. 668, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011), which requires the prosecution to show that the murder victim was "reasonably likely" to have communicated with a federal official. Id. at 678, 131 S.Ct. 2045. We conclude that, on the existing record, Dhinsa has failed to make the threshold showing of innocence. He ordered the killing of the two victims after they began investigating his multi-year, multimillion-dollar racketeering enterprise, through which Dhinsa committed acts of violence, fraud, and bribery. Racketeering enterprises of this nature are commonly investigated and prosecuted by federal officials. Thus, a juror could reasonably find that each of Dhinsa’s victims was "reasonably likely" to have communicated with federal officials had Dhinsa not ordered him killed. The District Court was thus correct to conclude that Dhinsa has failed to make the required threshold showing under § 2255(e). This threshold test is jurisdictional, however, and so the District Court erred insofar as it entered a judgment denying the petition on the merits. Accordingly, we VACATE that portion of the judgment and REMAND the case with instructions for the District Court to enter a judgment dismissing the petition for lack of jurisdiction.

BACKGROUND

I. Dhinsa’s criminal trial and direct appeal

In 1999, a jury convicted Dhinsa on twenty-one counts arising out of Dhinsa’s role in a racketeering enterprise. The evidence adduced during Dhinsa’s four-month trial before the District Court is described at length in this Court’s opinion ruling on his multi-faceted direct appeal. See United States v. Dhinsa ("Dhinsa I "), 243 F.3d 635 (2d Cir. 2001). We set forth those facts here only as necessary to understand and resolve the instant appeal.²

Dhinsa was indicted on twenty-nine counts in connection with his role as "the self-professed leader of the ‘Singh Enterprise,’ a vast racketeering organization built around a chain of fifty-one gasoline stations that Dhinsa owned and operated throughout the New York City metropolitan area under the name ‘Citygas.’ " Id. at 643. Dhinsa installed "pump-rigging" technology that overcharged consumers for gas, generating tens of millions of dollars of excess revenues over a period of a decade. Id. He protected the enterprise by bribing public officials, purchasing weapons, and threatening, kidnapping, or murdering individuals whom he viewed as threats to his operations. Id. at 643–46.

The convictions at issue in this appeal arise out of the 1997 killings of Manmohan Singh ("Manmohan") and Satinderjit Singh ("Satinderjit"), each of whom was "murdered on Dhinsa’s orders" after they began independently questioning the activities of the Singh Enterprise. Id. at 643. As we found when this case was last before us:

Prior to his death, Manmohan made numerous inquiries, and confronted various members of the Singh Enterprise, about the July 1995 disappearance of his brother Kulwant, a Citygas employee. Dhinsa ordered Satinderjit murdered after learning that he was cooperating with police regarding, inter alia, Kulwant’s disappearance, Manmohan’s murder, and the enterprise’s pump-rigging scheme.

Id. The jury convicted Dhinsa on multiple counts in connection with these murders, including two counts of informant murder (because of Manmohan and Satinderjit’s "active or potential cooperation with the police"), along with two counts of murder in aid of racketeering and two counts of conspiracy to murder in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1), (5). Id. at 644. Overall, the jury convicted Dhinsa on twenty-one of the twenty-nine counts in the superseding indictment. Id. at 642. On appeal, we vacated three of Dhinsa’s convictions and affirmed the remaining eighteen, including all convictions on the counts arising out of the murders of Manmohan and Satinderjit. Id. at 677–78.

Dhinsa’s incarceratory sentence, as adjusted after the appeal, consists of six concurrent terms of life imprisonment—four of which arise out of his convictions for informant murder and murder in aid of racketeering in connection with the murders of Manmohan and Satinderjit—plus several lesser concurrent and consecutive sentences of varying lengths. The District Court also imposed financial penalties, including a statutorily mandated special assessment of $50 to $100 for each count of conviction. See 18 U.S.C. § 3013(a) (specifying the amount of money courts "shall assess on any person convicted of an offense against the United States").

II. Collateral proceedings

In 2002, after Dhinsa’s convictions became final, he filed two habeas petitions asserting claims of ineffective assistance of counsel: a petition under 28 U.S.C. § 2241 in the Central District of California, where he was then incarcerated, and a motion to vacate his sentence under 28 U.S.C. § 2255 in the District Court in the Eastern District of New York. Both petitions were rejected on procedural grounds.

In May 2012, Dhinsa filed a new § 2241 habeas petition asserting that he is innocent of both counts of informant murder under the standard articulated in the Supreme Court’s 2011 decision in Fowler .³ The District Court transferred the § 2241 petition to this Court for possible certification as a second or successive § 2255 motion under 28 U.S.C. § 2255(h). In May 2013, a motions panel concluded that Dhinsa’s motion did not qualify as a successive § 2255 motion. The Court remanded, however, with instructions for the District Court to consider: (1) whether Dhinsa is entitled to file a § 2241 petition via the savings clause in § 2255(e), and if so, (2) whether Dhinsa is entitled to relief under § 2241.

On remand, after the parties filed briefs addressing those two questions, the District Court requested additional briefing on the so-called "concurrent sentence" doctrine, under which "an appellate court affirming a conviction and sentence" may, in its discretion, choose "not [to] hear a challenge to a conviction on another count if [that second conviction] carries a sentence that is equal to or less than the affirmed conviction." Concurrent-Sentence Doctrine , Black’s Law Dictionary (10th ed. 2014); see generally United States v. Vargas , 615 F.2d 952, 956–60 (2d Cir. 1980). In response, Dhinsa acknowledged that even if he receives all the relief sought in his habeas petition, he will remain incarcerated pursuant to his four additional concurrent life sentences.

On March 2, 2017, the District Court issued an order denying Dhinsa’s petition. Dhinsa v. Krueger (" Habeas Order "), 238 F.Supp.3d 421 (E.D.N.Y. 2017). The District Court concluded, first, that the petition should be dismissed under the concurrent sentence doctrine because Dhinsa had not identified any meaningful collateral consequences arising specifically out of the two challenged convictions. Id. at 427–33. In conducting that analysis, the District Court cited extensively to cases discussing subject matter jurisdiction and Article III standing, but did not expressly articulate any jurisdictional conclusions regarding this case. Next, the District Court responded to the questions posted in this Court’s mandate and concluded that Dhinsa is neither...