Shakur v. United States
| Decision Date | 12 September 2014 |
| Docket Number | No. 97 Civ. 2908(CSH).,97 Civ. 2908(CSH). |
| Citation | 44 F.Supp.3d 466 |
| Parties | Mutulu SHAKUR, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
Motion denied. Jonathan W. Lubell, Morrison Cohen Singer & Weinstein, New York, NY, for Petitioner.
RULING ON MOTION TO CORRECT ILLEGAL SENTENCE
I. INTRODUCTION
Petitioner Mutulu Shakur (“Petitioner”), a federal prisoner currently serving a sentence imposed by this Court, moves pro se under Federal Rule of Criminal Procedure 35(a) “to correct an illegal sentence.” Motion, at 1. 1 Respondent United States (“the government”) opposes the motion. On May 11, 1988, following a six-month jury trial before this Court, Petitioner was convicted of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), participation in a racketeering enterprise, bank robbery, armed bank robbery, and bank robbery murder, in violation of 18 U.S.C. §§ 1961, 1962(c), 1962(d), 2113(a), 2113(d), 2113(e), and 2. On August 2, 1988, the Court sentenced Petitioner to sixty (60) years of imprisonment and “recommended that no parole consideration be given until the maximum period has been served.” United States v. Shakur, 82 Crim. 312(CSH) (Aug. 2, 1988). On October 20, 1989, the Second Circuit affirmed the judgment of conviction in all respects. United States v. Shakur, 888 F.2d 234, 239 (2d Cir.1989) ( per curiam ). The United States Supreme Court denied certiorari. Shakur v. United States, 493 U.S. 1087, 110 S.Ct. 1152, 107 L.Ed.2d 1056 (1990).
In his present motion, Petitioner argues principally that his “otherwise legal sentence as pronounced by the court, became illegal” when the Court “recommended that no parole consideration be given until the maximum period has been served.” Motion at 2 (internal quotation marks omitted). He asserts that the Court's recommendation has improperly “influenced the B.O.P. [Bureau of Prisons] and the Parole Commission” to “illegally carry-out that sentence.” The government has filed a brief in support of its contention that Shakur's motion should be denied in its entirety. Petitioner has filed a reply brief.
Neither party asks for an evidentiary hearing. None is required because the validity of the motion turns entirely upon questions of law. This Ruling resolves the motion.
II. BACKGROUND
In 1976, Petitioner formed a militant political group known as the “Family,” which was “organized in the mid–1970's to further its conception of the Black struggle in America.” Shakur, 888 F.2d at 236. Although the group's goals were political, “their means of attaining those goals were violently criminal.” Id. From December 1976 to October 1981, the Family engaged in a succession of robberies and attempted robberies of armored trucks in the northeastern states of the United States. Shakur was one of the leaders of a small inner circle in the Family who planned and executed the robberies. Id. The final and most notorious of these robberies occurred on October 20, 1981 and was known as the “Brinks robbery.” That robbery resulted in the shooting deaths of three individuals, a Brinks security guard and two police officers in Nanuet and Nyack, New York.
After the Brinks robbery, Petitioner eluded the authorities for more than four years. The FBI placed him on their ten “Most Wanted” list and eventually found him living in Los Angeles under an assumed name. He was pursued, after being spotted walking down a street in East Los Angeles, and arrested on February 11, 1986.
Following protracted pre-trial proceedings, Shakur's trial commenced before this Court on November 9, 1987, On May 11, 1988, after six months of trial and seven days of jury deliberation, the jury returned a verdict of guilty on all counts, including the RICO, robbery and murder charges detailed supra. On August 2, 1988, this Court sentenced Shakur to sixty (60) years of imprisonment and recommended against parole.2 As set forth above, the sentence was upheld upon appeal, 888 F.2d 234 (2d Cir.1989), cert. denied, 493 U.S. 1087, 110 S.Ct. 1152, 107 L.Ed.2d 1056 (1990).
On June 19, 1990, Petitioner moved this Court for a reduction of sentence pursuant to Rule 35(b), Fed.R.Crim.P. In that motion, Petitioner requested, inter alia, “that his sentence be reduced to time served or to concurrent rather than consecutive terms; that the sentence be changed from one imposed under 18 U.S.C. § 4205(a) to one imposed under 18 U.S.C. § 4205(b), thus accelerating his eligibility for parole; and to rescind the Court's recommendation against parole.” United States v. Shakur, No. 82 Crim. 312(CSH), 1990 WL 200646, at *1 (S.D.N.Y. Dec. 4, 1990). The Court denied the motion in its entirety, setting forth its reasoning in its Ruling.3 Id. In 1997, Petitioner filed a habeas corpus petition, seeking relief pursuant to 28 U.S.C. § 2255, alleging that the Government failed to disclose evidence favorable to Petitioner and presented perjured testimony. The Court denied that petition. Shakur v. United States, 32 F.Supp.2d 651 (S.D.N.Y.1999).
In 1996, Petitioner filed a habeas corpus petition in the United States District Court for the District of Columbia against twenty-five employees of the federal Bureau of Prisons (“BOP”) in their official capacity, alleging, inter alia, that these officials violated his Fifth Amendment right to due process. Shakur v. Federal Bureau of Prisons, No. Civ. A. 96–646, 1998 WL 51718 (D.D.C. Feb. 3, 1998). Specifically, Shakur alleged that “Defendants deprived him of his liberty interest to an early parole hearing in February 1996 by using information that ‘they knew or had reason to know was false’ to prevent the hearing from going forward.” 1998 WL 51718, at *3 (quoting Complaint, at ¶ 50). The district court concluded that Shakur failed to “explain how, but for the allegation of his involvement in work strikes [at the prisons in which he was incarcerated], he would have been granted an early parole hearing less than a decade after he was sentenced to 60 years.” 4 Id. In short, Shakur had “provided th[e] Court with no applicable law or regulation to suggest that he would have qualified for an early hearing in February 1996.” Id. The district court granted summary judgment, dismissing the case with prejudice. Id. The Court of Appeals for the District of Columbia affirmed the district court's judgment in all respects. Shakur v. Fed. Bureau of Prisons, No. 98–5174, 1998 WL 796302, at *1 (D.C.Cir. Oct. 29, 1998) ( per curiam ).
On July 17, 2002, Shakur received a parole hearing. See Shakur v. Wiley, 156 Fed.Appx. 137, 139 (11th Cir.2005) ( per curiam ) (). At that time, upon Shakur's request for disclosure of BOP and Commission files, the hearing examiner granted a continuance of the hearing. Shakur was able to “review the institutional file” and ultimately waived his right to review “the Commission's ‘mini-file’ ” ( i.e., those documents contained in the Commission's file) in that the “mini-file did not contain any documents that had not been made available to him previously,” with the exception of letters supporting his parole. Id. at 139 & n. 4. On September 24, 2002, upon Shakur's indication that he was ready to proceed, the hearing went forward.
The examiner ultimately denied parole, finding that “given Shakur's leadership role [in the Family], Shakur was accountable for his own actions as well as the actions of others in his enterprise.” 5 Id. at 139. Therefore, “anything less than a 15–year reconsideration hearing date would depreciate the seriousness of the offense.” Id. at 139–40. The examiner further commented that Shakur “has currently served about 14 years in confinement, however, the service of an additional 15 years in no way seems excessive considering the gravity of the offense which involved four murders and serious injuries to others during multiple crimes of violence.” Id. at 140. Therefore, Shakur would not be entitled to parole reconsideration until 2017.
The Parole Commission (herein also “Commission”) adopted the hearing examiner's decision, concluding that “the hearing examiner's determination as to Shakur's parole reconsideration hearing date was warranted based on the aggravating factors described.” Id. In its order, the Commission emphatically reminded Shakur:
You were the organizer of a revolutionary movement that resorted to committing crimes of extreme violence between the years of 1976 and 1981 involving multiple robberies of armored vehicles and other financial institutions. During these assaultive events, four individuals were murdered and others were seriously injured. In addition, your group was involved in the kidnaping of two prison officials to effect the escape of one of your co-conspirators who was serving a life sentence for the murder of a state trooper.
Not only did you orchestrate the criminal acts carried out by you and others, you also demonstrated a willingness to be an active participant in these crimes of violence by assuming a “front-line” level of involvement in the robberies and criminal assaults.
On appeal, the National Appeal Board (“NAB”) affirmed the Commission's decision. Id. In particular, the NAB “rejected Shakur's request for a more lenient decision, finding that he had shown no mitigating circumstances and the Commission sufficiently considered the mitigating and aggravating factors of his case.” Id.
Thereafter, in 2004, Shakur filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Georgia. Shakur v. Wiley, No. 1:04–cv–445 (RWS) (N.D.Ga.2004), In that petition, Shakur challenged the Commission's denial of parole and decision to set a 15–year reconsideration date. See Wiley, No. 1:04–cv–445, at Doc. 1 (filed 2/17/2004), After conducting a de...
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