Duka v. United States

• Citation: 27 F.4th 189
• Decision Date: 08 March 2022
• Docket Number: No. 20-2793, No. 20-2799,20-2793
• Parties: Dritan DUKA, Appellant v. UNITED STATES of America Shain Duka, Appellant v. United States of America
• Court: U.S. Court of Appeals — Third Circuit

27 F.4th 189

Dritan DUKA, Appellant

v.UNITED STATES of America

Shain Duka, Appellant

v.United States of America

No. 20-2793

No. 20-2799

United States Court of Appeals, Third Circuit.

Argued: November 9, 2021

Opinion filed: March 8, 2022

Stephen F. Downs, Kathy E. Manley [ARGUED], 26 Dinmore Road, Selkirk, NY 12158, Counsel for Appellants

Mark E. Coyne, John F. Romano [ARGUED], Office of United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Counsel for Appellee

Before: HARDIMAN, MATEY, and SCIRICA, Circuit Judges

OPINION OF THE COURT

SCIRICA, Circuit Judge

Petitioner-Appellants Dritan and Shain Duka are each serving multiple sentences for various crimes arising out of a plot to attack the United States Army base at Fort Dix, New Jersey, among other United States military bases and facilities. Appellants moved for relief under 28 U.S.C. § 2255, primarily contending their 18 U.S.C. § 924(c) convictions must be vacated under United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2323–24, 204 L.Ed.2d 757 (2019). On August 6, 2020, the United States District Court for the District of New Jersey denied their motions for relief under 28 U.S.C. § 2255. The trial judge declined to consider the merits of Appellants' challenge to their Section 924(c) convictions, reasoning that, since they were each subject to an unchallenged life sentence, any potential vacatur of their Section 924(c) convictions would result in no practical change to their confinement. In so finding, the trial judge invoked the "concurrent sentence doctrine's rationale," J.A. 21, which provides a court "discretion to avoid resolution of legal issues affecting less than all of the counts in an indictment where at least one count will survive and the sentences on all counts are concurrent." United States v. McKie , 112 F.3d 626, 628 n.4 (3d Cir. 1997). Appellants contend this invocation was an abuse of discretion, and request we expand their certificates of appealability to consider additional claims for relief previously rejected by the District Court.

We will affirm the District Court's judgment in full.

I.¹

A.

Appellants are a pair of Albanian-born brothers who lived in New Jersey illegally. Along with a group of co-defendants, the pair developed an interest in violent jihad and committing attacks against the United States military. Appellants were brought to the FBI's attention when the agency received a copy of a video dated January 2006 that depicted Appellants and their co-defendants at a firing range in the Pocono mountains shooting weapons and shouting "jihad in the States." United States v. Duka , 671 F.3d 329, 333–34 (3d Cir. 2011). Over the next sixteen months, the FBI deployed two cooperating witnesses to monitor Appellants' activities and develop evidence against them. The FBI learned that in 2006 and 2007, Appellants took at least two trips to the Pocono mountains to train for their jihad along with their co-defendants. During these trips, Appellants fired weapons, attempted to purchase automatic firearms, discussed their jihadist plans, and watched violent jihadi videos, including videos of "hundreds" of beheadings. Duka , 671 F.3d at 334. Appellants also befriended Besnik Bakalli, an FBI informant and fellow Albanian, and encouraged Bakalli to join their planned jihad.

In January 2007, the brothers told Bakalli they had acquired a shotgun, two semi-automatic rifles, and a pistol. Evidently unsatisfied with their growing arsenal, Appellants ordered nine fully automatic rifles from a contact in Baltimore. In response, the FBI arranged a controlled transaction, and, on May 7, 2007, Appellants visited the apartment of an FBI cooperating witness with plans to retrieve these weapons. After handing cash to the cooperator, Appellants examined and handled four automatic machineguns and three semi-automatic assault rifles. Appellants then asked for garbage bags to conceal the weapons so they could bring them to their car. But before they were able to do so, Appellants were intercepted and arrested by federal and state law enforcement officers. The entire transaction was captured on video by cameras the FBI had installed in the cooperator's apartment. All five co-defendants were apprehended on May 7, 2007.

B.

Along with their co-defendants, Appellants were charged under a superseding indictment filed on January 15, 2008. The superseding indictment charged Appellants with:

• Conspiracy to murder members of the U.S. military, in violation of 18 U.S.C. §§ 1114 & 1117 ;

• Attempt to murder members of the U.S. military, in violation of 18 U.S.C. § 1114 ; • 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) ;

• Possession of machineguns in violation of 18 U.S.C. § 922(o) ; and

• Two counts of possession of firearms by an illegal alien in violation of 18 U.S.C. § 922(g)(5).

Appellants pled not guilty to all charges. After a two-and-a-half-month jury trial, each Appellant was convicted on the charges of conspiracy to murder members of the United States military, possession or attempted possession of firearms in furtherance of a crime of violence, possession of machineguns, and two counts of possession of firearms by an illegal alien. They received identical sentences as follows:

• Conspiracy to murder members of the U.S. military: Life imprisonment.

• Possession or attempted possession of firearms in furtherance of a crime of violence: 360 months' imprisonment to run consecutively with their life sentences.

• Possession of machineguns: 120 months' imprisonment to run concurrently with their life sentences.

• Possession of firearms by an illegal alien: 120 months' imprisonment on each count, to run concurrently with their life sentences.

C.

In the intervening years since their sentencing, Appellants have launched several unsuccessful challenges to their convictions. First, they, along with their co-defendants, raised numerous challenges to their convictions on direct appeal. See Duka , 671 F.3d at 336–56. On December 28, 2011, we rejected each of Appellants' arguments and affirmed the trial judge's decision with respect to them. Id. at 333.

On June 13, 2013, Appellants filed a federal habeas petition under 28 U.S.C. § 2255, making several different claims, including contending they received ineffective assistance of both trial and appellate counsel, and that the Government withheld certain exculpatory information. After an evidentiary hearing on one claim, the trial judge denied each of Appellants' asserted grounds for relief. Appellants filed for a certificate of appealability, which we denied on February 6, 2017.

In February and April 2019, each Appellant a filed motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6). The basis of this motion was an assertion that the trial judge failed to properly instruct the jury on the appropriate mens rea for their conspiracy to commit murder charge. In June 2019, the trial judge denied both motions. Appellants appealed these decisions. Ultimately, Dritan Duka voluntarily withdrew his appeal. But Shain Duka persisted and, on January 22, 2020, we denied his request for a certificate of appealability stating the "correctness of the challenged jury instruction is not debatable." Duka v. United States , No. 19-2676, 2020 WL 8073724, at *1 (3d Cir. Jan. 22, 2020).

As these challenges were ongoing, the Supreme Court decided Johnson v. United States , 576 U.S. 591, 597, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), finding the residual clause of 18 U.S.C. § 924(e) violated due process. On June 27, 2016, in parallel to the rest of their appeals, Appellants filed a motion to vacate their Section 924(c) convictions, on the basis that their Section 924(c) convictions were made under a residual clause parallel to the one that the Supreme Court struck down in Johnson .²

On October 26, 2016, the trial judge denied this motion, finding it was an unauthorized second or successive Section 2255 motion. Appellants filed a notice of appeal. But on July 31, 2019, Appellants and the Government jointly moved for a remand of the appeal back to the District Court so the trial judge could consider the impact of the intervening decisions of United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2323–24, 204 L.Ed.2d 757 (2019) and United States v. Santarelli , 929 F.3d 95 (3d Cir. 2019). We granted this motion on October 4, 2019.

On remand, Appellants ultimately advanced three arguments: First, their Section 924(c) convictions must be vacated under Davis. And in light of the vacatur of these sentences, the District Court should conduct a full resentencing on their other convictions. Second, their convictions on the conspiracy to murder charge must be vacated due to ineffective assistance of trial and appellate counsel. And third, they are actually innocent of the conspiracy to murder members of the U.S. military.

On August 6, 2020, the trial judge denied Appellants' petitions, rejecting each of these arguments. Most relevantly to this appeal, the trial judge declined to decide Appellants' challenge to their Section 924(c) convictions, reasoning that since their life sentences were not being challenged, there would be no practical effect of vacating the Section 924(c) sentences. The trial judge noted "as a practical matter, [Appellants] will never serve their § 924(c) convictions due to their life sentences on their conspiracy to murder convictions." J.A. 18. In making this finding, the trial judge invoked the "concurrent sentence doctrine's rationale." J.A. 21. As the trial judge explained, this doctrine applies where a petitioner would remain subject to the same sentence and would not suffer any unique collateral consequences rising to the level of custody from the challenged convictions. Moreover, the trial judge found even if he were to vacate the Section 924(c) convictions, he would not need to conduct a full resentencing given their...