Musa v. United States, No. 19-cv-9130 (RJS)

• Decision Date: 23 November 2020
• Docket Number: No. 90-cr-863 (RJS),No. 19-cv-9130 (RJS), No. 97-cv-2833 (RJS)
• Citation: 502 F.Supp.3d 803
• Parties: Jawad Amir MUSA, Petitioner, v. UNITED STATES of America, Respondent. Jawad Amir Musa, Petitioner, v. United States of America, Respondent. United States of America v. Jawad Amir Musa, Defendant.
• Court: U.S. Court of Appeals — Fifth Circuit

502 F.Supp.3d 803

Jawad Amir MUSA, Petitioner,

v.UNITED STATES of America, Respondent.

Jawad Amir Musa, Petitioner,

v.United States of America, Respondent.

United States of America

v.Jawad Amir Musa, Defendant.

No. 19-cv-9130 (RJS)

No. 97-cv-2833 (RJS)

No. 90-cr-863 (RJS)

United States District Court, S.D. New York.

Signed November 23, 2020

Kenneth Wainstein, Briccetti, Calhoun & Lawrence LLP, White Plains, NY, for United States of America.

OPINION AND ORDER

RICHARD J. SULLIVAN, Circuit Judge:

Defendant Jawad Amir Musa has filed three motions seeking collateral relief from his term of life imprisonment. With the aid of counsel, Musa moves for compassionate release under the First Step Act of 2018, 18 U.S.C. § 3582(c)(1)(A). (Doc. No. 303.¹ ) Musa argues principally that his sentence is unfairly long given both recent sentencing law reforms and his rehabilitation over the intervening decades. (Doc. No. 304 at 3–5 ("Musa Br.").) Separately, Musa moves pro se to reopen his original habeas petition under Federal Rule of Civil Procedure 60(b) in light of the decision in United States v. Holloway , 68 F. Supp. 3d 310 (E.D.N.Y. 2014). (Doc. No. 276.) Lastly, Musa has filed a new pro se habeas petition, arguing that a recent statistical assessment conducted by the U.S. Sentencing Commission demonstrates that he was subjected to a recidivism enhancement solely because of his race. (Doc. No. 338.) The government opposes Musa's motions for compassionate release and to reopen his original habeas petition. (Doc. No. 286; Doc. No. 311 ("Gov't Br.").) The government has not taken a position on the merits of Musa's new pro se habeas petition. For the reasons set forth below, Musa's requests for compassionate release and to reopen his original habeas petition are DENIED, and his new pro se habeas petition, which is successive, is transferred to the United States Court of Appeals for the Second Circuit.

I. Background

A. Musa's Underlying Crime & Conviction

This case began with a drug deal in midtown Manhattan nearly three decades ago. In November 1990, an undercover confidential informant, posing as a drug dealer, offered to sell a kilogram of heroin to a man name David Wray. See Moses v. United States , No. 97-cv-2833 (RPP), 1998 WL 255401, at *1 (S.D.N.Y. May 20, 1998). Though Wray was interested, he was short the $20,000 he needed for the deal's down payment and turned to a contact, Sean Brockington, for help. Id. ; United States v. Moses , No. 90-cr-863 (RPP), 1993 WL 128009, at *1 (S.D.N.Y. Apr. 16, 1993). Brockington, in turn, reached out to Musa, who agreed to provide the $20,000. Moses , 1998 WL 255401, at *1. From that point on, Musa controlled the direction of the deal. See id. at *2 ; Moses , 1993 WL 128009, at *3.

But Musa did not trust Wray, so additional conspirators were soon brought into the transaction. See Moses , 1993 WL 128009, at *3. One was Norman Ransom, whose job was to "keep a close eye on Wray" and to facilitate the sale. Id. Another was Carmelita Grant, who was tasked with handling the money. Id. at *2. Musa also asked Brockington to accompany him to provide "further protection against a ‘rip off.’ " Id. at *3.

Once formed, the group of conspirators drove from Baltimore to Manhattan to complete the deal. See Moses , 1998 WL 255401, at *2. Upon their arrival, Musa handed Grant the $20,000 and directed Ransom, who had a gun, to frisk Wray. Id. Wray, Ransom, and Grant then went to meet the supplier – who, as noted above, was actually an undercover confidential informant working with law enforcement – at a gas station, while Musa and Brockington waited nearby in a Mercedes-Benz. Id. ; Doc. No. 279-1 at 4. The plan was for Ransom to receive the drugs and give them to Grant, who was then supposed to return to Baltimore by train. Moses , 1993 WL 128009, at *2. But as the money was about to be exchanged, the confidential informant signaled to nearby government agents, who quickly swooped in and arrested the three conspirators engaged in the sale. See Moses , 1998 WL 255401, at *2. Musa watched this unfold from his car and quickly fled the scene, but not before throwing his own gun out of his car window. Id. Though the police gave chase, they were unable to catch Musa. It was not until law enforcement agents were able to track Musa down in Baltimore that he was finally apprehended. Id.

Following his arrest, Musa was indicted on one count of conspiring to possess, with intent to distribute, one kilogram or more of heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), a crime that carried a minimum sentence of ten years’ incarceration and a maximum sentence of life imprisonment. Id. at *1 ; Doc. No. 279-1 at 4. Despite the prospect of facing at least a decade in prison if convicted, Musa turned down the government's plea offer and chose instead to exercise his right to trial. (Musa Br. at 5.) In light of Musa's decision, the government filed a prior felony information pursuant to 21 U.S.C. § 851, based on Musa's two previous state-court drug convictions.² (Id. at 5–6.) As a result of the filing, the mandatory minimum sentence that Musa would receive if convicted at trial increased to life imprisonment. (Id. at 6; Doc. No. 279-1 at 4.)

In July 1991, a jury convicted Musa of conspiring to possess heroin with intent to distribute. Moses , 1998 WL 255401, at *1. Judge Patterson, who presided over the trial, later held a sentencing hearing, after which he found "by a preponderance of the evidence that ... Musa knew that he was engaging in a conspiracy to possess, with intent to distribute, a kilogram of heroin." Moses , 1993 WL 128009, at *3. Thereafter, on May 5, 1993, Judge Patterson sentenced Musa to a term of life imprisonment as required by 21 U.S.C. §§ 841(b)(1)(A) and 851. (Doc. No. 129.) The Second Circuit affirmed Musa's conviction on direct appeal (Doc. No. 138), and Judge Patterson denied Musa's original habeas petition in May 1998 (Doc. No. 175).

In the decades since then, Musa has filed numerous successive motions with the district court and Court of Appeals seeking to have his conviction and sentence overturned. All have been denied. (See, e.g. , Doc. Nos. 182, 188, 190, 195, 228, 230, 238, 246, 254, 255, 258, 259, 267, 268, 270.)

B. Musa Seeks Clemency

In May 2016, Musa sought clemency from the Office of the Pardon Attorney of the Department of Justice. (Gov't Br. at 7.) In support of his petition, Musa submitted a letter purportedly authored by "Captain M. Earwin" of USP Florence, the facility at which Musa is incarcerated (the "Earwin Letter"). (Id. ; Doc. No. 311-1.) Approximately eight months later, the Office of the Pardon Attorney denied Musa's petition – at a time when President Obama was granting commutations to hundreds of individuals, many of whom, like Musa, were serving long sentences for narcotics convictions.³ See Gov't Br. at 7; Neil Eggleston, The Reinvigoration of the Clemency Authority , THE WHITE HOUSE BLOG (Jan. 19, 2017, 2:25 PM) ("The President has now granted commutation to a total of 1,715 individuals, ... [t]he vast majority of [whom] are serving unduly long sentences for drug crimes. With today's action, the President has granted more commutations than any president in this nation's history and has surpassed the number of commutations granted by the past 13 presidents combined.");⁴ see also Simmtech Co. v. Barclays Bank plc (In re Foreign Exch. Benchmark Rates Antitrust Litig. ), 74 F. Supp. 3d 581, 588 n.4 (S.D.N.Y. 2015) (explaining that "[c]ourt[s] may take judicial notice of the press releases of government agencies" (quoting McLoughlin v. People's United Bank, Inc. , 586 F. Supp. 2d 70, 73 (D. Conn. 2008) )).

C. The Pending Motions for Relief

On February 10, 2017, only weeks after his clemency petition was denied, Musa filed a pro se motion seeking to reopen his original habeas petition. (Doc. No. 276.) The motion is styled as one for "relief from final judgment to reopen § 2255 motion pursuant to Fed.R.Civ.P. 60(b)(6) and United States v. Holloway , 68 F.Supp.3d 310 (E.D.N.Y. 2014) or alternatively through a writ of audita querela or coram nobis under the all writs act, 28 U.S.C. § 1651(a)." (Id. at 1.) Musa argues principally that he should be permitted to reopen his habeas petition because of the non-binding decision of a district court judge in the Eastern District of New York in an unrelated case. (Id. at 3–4.) In support of his argument, Musa asserts that "[t]he Captain at USP, Florence has ... endorsed [his] release," citing to the Earwin Letter, which he attached as an exhibit to his motion. (Id. at 16; see also id. at 60.)

Over the ensuing months, Musa's counsel wrote several letters to the Acting United States Attorney for the Southern District of New York, arguing that Musa's life sentence was unjust and urging the U.S. Attorney's Office to consider vacating Musa's sentence and prior felony informations so that this Court could resentence Musa – essentially, the same relief Musa requests in his pro se Rule 60(b) Motion. (See, e.g. , Doc. No. 279.) As part of that correspondence, Musa's counsel – John Gleeson, a former judge in the Eastern District of New York, and the author of the Holloway decision referenced in Musa's Rule 60(b) motion – provided the government with the Earwin Letter, along with other letters in support of Musa's release. (Doc. No. 279-1 at 18.) Eventually, in November 2017, the government informed Musa that while it was "sympathetic to the spirit of [his] request," there was "no lawful basis to authorize the requested post-sentencing relief." (Doc No. 286 at 1.) In response, Musa filed a pro se reply brief in further support of his Rule 60(b) motion. (Doc. No. 287.)

A little over a year later, in January 2019, Musa requested a hearing on his pending motion. (Doc. No. 288.) Shortly thereafter, an attorney for the Bureau of Prisons ("BOP") provided the government with a declaration from Eric Earwin, the former captain at USP Florence, indicating that...