Duka v. United States
Decision Date | 29 September 2015 |
Docket Number | Civ. No. 13-3665 (RBK),Civ. No. 13-3664 (RBK),Civ. No. 13-3666 (RBK) |
Parties | DRITAN DUKA, Petitioner,, v. UNITED STATES OF AMERICA, Respondent. SHAIN DUKA, Petitioner,, v. UNITED STATES OF AMERICA, Respondent. ELJVIR DUKA, Petitioner,, v. UNITED STATES OF AMERICA, Respondent. |
Court | U.S. District Court — District of New Jersey |
Petitioners Dritan Duka, Shain Duka and Eljvir Duka (collectively referred to as the "Dukas" in this Opinion), seek relief through counsel under 28 U.S.C. § 2255 from their federal convictions and sentences.1 The Dukas were convicted after a jury trial (along with their co-conspirators Mohamed Shnewer and Serdar Tatar) of conspiracy to murder members of the United States military amongst other charges. The Dukas raise seven ineffective assistance of counsel claims in their motions; specifically: (1) denial of their right to testify ("Claim I"); (2) failure to request a jury instruction on the First Amendment ("Claim II"); (3) failure to object to expert testimony ("Claim III"); (4) failure to move for voir dire after a juror reaction to a video played at trial ("Claim IV"); (5) appellate counsel's failure to argue that a conversation was admissible under Federal Rule of Evidence 803(3) ("Claim V"); (6) failure to request a hearing on a missing recording ("Claim VI"); and (7) failure to introduce a video recording ("Claim VII"). The government has filed an opposition which asserts that the claims should be denied on the merits. For the following reasons, the Court will order an evidentiary hearing on Claim I, but will deny relief on the remaining claims the Dukas have raised.
United States v. Duka, 671 F.3d 329, 333-35 (3d Cir. 2011).
Relevant to this Opinion, the Dukas were charged with: (1) conspiracy to murder members of the United States military in violation of 18 U.S.C. §§ 1114 & 1117 ("Count I"); (2) attempt to murder members of the United States military in violation of 18 U.S.C. § 1114 ("Count II"); (3) possession or attempted possession of firearms in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) and 924(c)(1)(B)(ii) ("Count III"); and (4) possession of firearms by an illegal alien in violation of 18 U.S.C. § 922(g)(5) ("Count VII"). Additionally, Dritan and Shain Duka were charged with possession of machineguns in violation of 18 U.S.C. § 922(o). The Dukas pled not guilty and went to trial. A jury found Dritan and Shain Duka guilty of the following: (1) conspiracy to murder members of the United States military, (2) possession or attempted possession of firearms in furtherance of a crime of violence; (3) possession of machineguns; and (4) possession of firearms by an illegal alien. Both Dritan and Shain Duka received a life sentence. Eljvir Duka was convicted by a jury of conspiracy to murder members of the United States military and possession of firearms by an illegal alien. He was also sentenced to life imprisonment. The jury found the Dukas not guilty of attempt to murder members of the United States military and found Eljvir Duka not guilty of Count III. The United States Court of Appeals for the Third Circuit affirmed the judgment and conviction as to the Dukas on December 28, 2011. See Duka, 671 F.3d 329.
The Dukas jointly filed a counseled § 2255 motion raising several claims.2 The government has filed a response in opposition and the Dukas have filed a joint reply.3
A motion to vacate, set aside or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief if "the court finds . . . [t]here has been such a denial or infringement of the constitutional rights of the prisoner as to render judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). "In considering a motion to vacate a defendant's sentence, 'the court must accept the truth of the movant's factual allegations unless they are clearly frivolous based on the existing record.'" United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)) (citing ...
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