Hammoud v. Ma'At

• Citation: 49 F.4th 874
• Decision Date: 31 August 2022
• Docket Number: 19-50914
• Parties: Mohamad Youssef HAMMOUD, Petitioner—Appellant, v. Warden Serkou MA'AT, Federal Correctional Institute Bastrop, Respondent—Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

49 F.4th 874

Mohamad Youssef HAMMOUD, Petitioner—Appellant,
v.
Warden Serkou MA'AT, Federal Correctional Institute Bastrop, Respondent—Appellee.

No. 19-50914

United States Court of Appeals, Fifth Circuit.

FILED August 31, 2022

Fielding Huseth, James Patrick McLoughlin, Jr., Christopher Donald Tomlinson, Moore & Van Allen, P.L.L.C., Charlotte, NC, for Petitioner-Appellant.

Joseph H. Gay, Jr., Elizabeth Berenguer, Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Respondent-Appellee.

Christopher J. Blake, Nelson Mullins Riley & Scarborough, L.L.P., Raleigh, NC, for Amicus Curiae Lawyers' Committee for Civil Rights Under Law.

Erika Maley, Office of the Attorney General, Solicitor General Division, Richmond, VA, Chelsea Ann Priest, Sidley Austin, L.L.P., Dallas, TX, for Amicus Curiae Jason Douglas Hawkins, in his official capacity as the Federal Public Defender, Northern District of Texas.

Zachary Tripp, Weil, Gotshal & Manges, L.L.P., Washington, DC, for Amici Curiae Valena Beety, Eric M. Freedman, Esq., Miriam Gohara, Jonathan Hafetz, Brandon Hasbrouck, Randy Hertz, Sheri Lynn Johnson, Leah Litman, Justin Marceau, Eve Brensike Primus, Judith Resnik, Ira P. Robbins, Stephen I. Vladeck, Larry Yackle.

Thomas Hillier, II, Mica D. Klein, Mallory Gitt Webster, Perkins Coie, L.L.P., Seattle, WA, Dan L. Bagatell, Perkins Coie, L.L.P., Hanover, NH, Nicole Wignall DeBorde, Esq., Hochglaube & DeBorde, P.C., Houston, TX, Cynthia Eva Hujar Orr, Goldstein & Orr, P.L.L.C., San Antonio, TX, for Amicus Curiae National Association of Criminal Defense Lawyers.

Before Richman, Chief Judge, and Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges.

Priscilla Richman, Chief Judge, joined by Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, and Wilson, Circuit Judges.

Mohamad Youssef Hammoud appeals the dismissal of his 28 U.S.C. § 2241 habeas corpus petition for lack of jurisdiction. A panel of this court affirmed the district court's judgment.¹ We granted rehearing en banc.² Because Hammoud could have raised all his present claims in a § 2255 motion, he may not raise them in a § 2241 petition. Accordingly, we affirm the district court's denial of § 2241 relief.

I

In 1999, Hammoud donated $3,500 to Hizballah, a designated foreign terrorist organization.³ On March 18, 2003, Hammoud

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was convicted of "knowingly provid[ing] material support or resources to a foreign terrorist organization" in violation of 18 U.S.C. § 2339B.⁴ At his trial, the jury was instructed that "knowingly" under § 2339B meant that Hammoud "was conscious and aware of his action, realized what was happening around him and did not act because of ignorance, mistake, or accident."

On December 17, 2004, Congress amended § 2339B to specify that an individual "must have knowledge that the organization is a designated terrorist organization ..., that the organization has engaged or engages in terrorist activity ..., or that the organization has engaged or engages in terrorism."⁵ In Hammoud's case, the Government did not prove that he knew Hizballah was a designated terrorist organization or was engaged in terrorist activity, as specified in the 2004 amendments.

The en banc Fourth Circuit Court of Appeals affirmed Hammoud's conviction.⁶ In 2014, Hammoud filed a § 2255 motion for postconviction relief, which the district court denied.⁷ The Fourth Circuit affirmed the district court's judgment,⁸ and the Supreme Court denied certiorari.⁹

In 2018, Hammoud filed a § 2241 petition in the Western District of Texas, where he was incarcerated at the time. The district court dismissed the petition for lack of jurisdiction. It held that Hammoud could not proceed under § 2241 because he had not established that a § 2255 motion was inadequate or ineffective to test the legality of his detention. Hammoud appealed that decision, which a panel of this court affirmed.¹⁰ We granted rehearing en banc.¹¹

II

"A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 are distinct mechanisms for seeking post-conviction relief."¹² Section 2255 motions "provide[ ] the primary means of collateral attack on a federal sentence."¹³

Section 2255 grants federal prisoners one opportunity to challenge any aspect of their sentence. The statute provides for a motion "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose

49 F.4th 879

such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."¹⁴

While the grounds for initial § 2255 motions are virtually unfettered, the grounds for subsequent § 2255 motions are restricted. In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress authorized a "second or successive motion" on only two bases.¹⁵ The motion must concern either:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.¹⁶

In "extremely limited circumstances," federal prisoners may seek postconviction relief through a § 2241 petition instead of a § 2255 motion.¹⁷ The so-called "saving clause"¹⁸ of § 2255(e) narrowly circumscribes this recourse to a federal prisoner for whom a § 2255 motion "is inadequate or ineffective to test the legality of his detention."¹⁹ The saving clause provides in full:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.²⁰

By its terms, the saving clause does not accommodate claims that may be remedied under § 2255. "A petition for a writ of habeas corpus pursuant to [§ ]2241 is not a substitute for a motion under [§ ]2255."²¹ A defendant need not file, let alone prevail, on a § 2255 motion. So long as the district court would have had jurisdiction to consider such a motion, it bars relief under § 2241. The circuit courts unanimously agree that the saving clause does not preserve claims that prisoners could have raised in a § 2255 motion. When "a prisoner had an opportunity to present his claim properly in his first § 2255 [motion], but failed to do so, any ‘ineffectiveness’ of his current § 2255 [motion] is due to him and not to § 2255."²² Since an

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opportunity is all that is required, "[i]t is beyond question that § 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision."²³ These limitations are necessary to give effect to "Congress's clear attempt to limit successive habeas petitions."²⁴

III

We now turn to Hammoud's petition. We review a district court's dismissal of a § 2241 petition de novo.²⁵ The petitioner bears the burden of establishing that the § 2255 remedy is "inadequate or ineffective to test the legality of his detention."²⁶

Hammoud makes three claims for § 2241 relief. First, he contends that the mens rea requirement in the pre-2004 statute was unconstitutionally vague. Hammoud could and did raise this claim in his first § 2255 motion, and the court rejected it.²⁷ That Hammoud's motion was "unsuccessful

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... does not make § 2255 inadequate or ineffective."²⁸ The failure of a § 2255 motion does not entitle Hammoud to "a second bite at the apple under § 2241."²⁹

Second, Hammoud argues that his conviction violates due process because the Government did not prove an element of his offense. He maintains that Congress retroactively amended § 2339B to require defendants to know that Hizballah was a designated terrorist organization or was engaged in terrorist activity. In Hammoud's view, the Government did not establish that he had this knowledge.

Hammoud could have raised this claim when he filed his first § 2255 motion, but he did not. Section 2255 provides for a one-year statute of limitations.³⁰ All of the pieces that comprise Hammoud's claim were in place well before that period expired. Congress had amended the statute at issue. The Supreme Court had decided the cases on which he relies. Because a § 2255 motion could have accommodated the challenge, a § 2241 petition is foreclosed.³¹ "[A] claim of error in addressing the sort of constitutional theory that has long been appropriate for collateral review does not render § 2255 ‘inadequate or ineffective.’ "³² The § 2255 remedy does not become inadequate or ineffective just because a defendant does not attempt to use it.³³

Third, Hammoud claims violations of his Sixth Amendment rights due to ineffective assistance of counsel. Hammoud could and did raise these claims in his initial § 2255 motion, and the court rejected them.³⁴ Once again, the failure of a § 2255 motion does not justify recourse to § 2241.³⁵ Ineffective assistance of counsel, based on facts known to the defendant at the time he files a § 2255 motion, is not the stuff of which § 2241 claims are made.³⁶ "[C]laims alleging ineffective assistance of counsel ... are ‘regularly made and resolved under § 2255,’ so the remedy by motion cannot be called ‘inadequate or ineffective’ for purposes of the Savings Clause.’ "³⁷ If we ruled that § 2255 was inadequate or ineffective "simply because the petitioner's prior [§ ]2255 motion was

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