In re Amawi, 071619 FED6, 18-3949

Docket Nº:18-3949
Opinion Judge:NALBANDIAN, CIRCUIT JUDGE.
Party Name:In re: MOHAMMAD ZAKI AMAWI, Movant.
Judge Panel:Before: GUY and NALBANDIAN, Circuit Judges.
Case Date:July 16, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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In re: MOHAMMAD ZAKI AMAWI, Movant.

No. 18-3949

United States Court of Appeals, Sixth Circuit

July 16, 2019

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

Before: GUY and NALBANDIAN, Circuit Judges. [1]

NALBANDIAN, CIRCUIT JUDGE.

Mohammad Zaki Amawi seeks authorization to file a second or successive habeas petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Amawi argues that the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), invalidates his convictions because it found 18 U.S.C. § 16(b) unconstitutionally vague. But because Amawi's convictions qualify as "crimes of violence" under 18 U.S.C. § 16(a), which remains untouched by Dimaya, we deny his motion.

I.

Back in 2008, a jury convicted Amawi for his part in a terrorist conspiracy. The conspiracy was to kill and maim people outside the United States, see 18 U.S.C. § 956(a)(1)-and to provide material support to help terrorists kill Americans. See id. § 2339A. To accomplish this, Amawi distributed information on how to create chemical explosives and suicide-bomb vests. See 18 U.S.C. § 842(p)(2)(A). The district court sentenced him to 240 months in prison. Amawi appealed, and we affirmed. United States v. Amawi, 695 F.3d 457, 465 (6th Cir. 2012).

Amawi then filed his first § 2255 motion, raising claims about illegally obtained evidence, failure to disclose evidence, and ineffective assistance of counsel. The district court denied his motion, and Amawi did not appeal. United States v. Amawi, No. 3:06-cr-719, 2014 WL 5795551 (N.D. Ohio Nov. 6, 2014).

Then we decided Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016), where we addressed the constitutionality of the term "crime of violence" as defined in 18 U.S.C. § 16. The § 16 definition has two parts-subsections (a) and (b). Shuti addressed only the latter, known as the residual clause, holding that § 16(b) is unconstitutionally void for vagueness. 828 F.3d at 446-47 (relying on Johnson v. United States, 135 S.Ct. 2551 (2015)). The Supreme Court agreed in Sessions v. Dimaya, confirming that the residual clause definition is unconstitutional. 138 S.Ct. 1204 (2018). But to be sure, both Shuti and Dimaya left § 16(a) untouched. This means that a "crime of violence" is still defined as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a) (known as the "elements clause").

These cases opened a new door for Amawi. The jury convicted him under 18 U.S.C. § 842(p)(2)(A), which for Amawi, made it unlawful to distribute his information about explosives and suicide vests if Amawi intended the recipients to use his information to commit "crimes of violence." To define this term, both the superseding indictment and jury instructions relied on the definition in § 16-including references to subsections (a) and (b). So Amawi filed a second habeas petition, arguing that his convictions were now invalid because § 16(b)'s definition is unconstitutional. See 28 U.S.C. §§ 2244(b), 2255(h). Said another way, Amawi argues that we must vacate his § 842 convictions because his underlying crimes are no longer "crimes of violence." Permission to proceed is sought on the grounds that he has made a prima facie showing that his second or successive § 2255 motion it is based on Dimaya, which the government agrees established a new and retroactive rule of constitutional law that was previously unavailable.

But for Amawi to make that showing, his relevant convictions must fall exclusively under § 16(b), which is now unconstitutional, rather than § 16(a), which remains valid. The jury found that Amawi distributed his information, in violation of § 842, to commit two crimes. The first was under 18 U.S.C. § 1114, killing or attempting to kill a United States employee engaged in the performance of...

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