Shnewer v. United States

• Decision Date: 02 March 2016
• Docket Number: Civ. No. 13-3769 (RBK)
• Parties: MOHAMAD IBRAHIM SHNEWER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — District of New Jersey

MOHAMAD IBRAHIM SHNEWER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civ. No. 13-3769 (RBK)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

March 2, 2016

OPINION

ROBERT B. KUGLER, U.S.D.J.

I. INTRODCUTION

Petitioner, Mohamad Ibrahim Shnewer, seeks relief under 28 U.S.C. § 2255 from his federal conviction and sentence. Mr. Shnewer filed his § 2255 motion and his reply brief in support pro se. However, Mr. Shnewer now has counsel representing him. Mr. Shnewer was convicted after a jury trial (along with his coconspirators Dritan Duka, Shain Duka, Eljvir Duka (collectively the "Duka brothers") and Serdar Tatar) of conspiracy to murder members of the United States military. Mr. Shnewer raises several claims in his § 2255 motion; specifically: (1) ineffective assistance of counsel by failing to object to the sentencing court's failure to give meaningful consideration to the need to avoid unwarranted sentencing disparities ("Claim I"); (2) ineffective assistance of counsel in failing to raise the sentencing court's impermissible use of religious beliefs to sentence him as well as a direct claim that this Court used his religion to determine his sentence ("Claim II"); (3) ineffective assistance of counsel for failing to communicate a plea offer to him or pursue plea discussions with the government ("Claim III"); and (4) all claims raised by his codefendants in their separate § 2255 motions ("Claim IV"). The respondent opposes the § 2255 motion. Mr. Shnewer then filed a reply brief along with an accompanying memorandum of law. Respondent then was permitted to file a sur-reply brief in response to Mr. Shnewer's reply brief and memorandum of law. For the following reasons, the Court will deny relief on all of the claims Mr. Shnewer raises in his § 2255 motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

Shnewer, the Duka brothers, and Tatar are a group of young men who lived in New Jersey and developed an interest in violent jihad, particularly attacks against the United States military. Defendants, who had known each other since high school, came to the FBI's attention after it received a copy of a video that was brought to a Circuit City store in Mt. Laurel, New Jersey for copying. The video dated from January 2006 and depicted the five defendants and others at a firing range in the Pocono Mountains, shooting weapons and shouting "Allah Akbar!" and "jihad in the States."

Over the course of the next sixteen months, the FBI deployed two cooperating witnesses, Mahmoud Omar and Besnik Bakalli, to monitor defendants' activities. The evidence presented at trial showed that, between January 2006 and May 2007, defendants viewed and shared videos of violent jihadist activities, including beheadings, around the world; they viewed and shared videos of lectures advocating violent jihad against non-Muslims; they sought to acquire numerous weapons, including automatic firearms and rocket-propelled grenades; they returned to the Poconos, where they again engaged in shooting practice; they discussed plans to attack the United States military; they conducted research and surveillance on various potential targets for such an attack in New Jersey, Pennsylvania, and Delaware; and they procured a map of the United States Army Base at Fort Dix to use in planning and coordinating such an attack.

With respect to the individual defendants, the evidence demonstrated the following:

Mohamad Shnewer is a naturalized American citizen who was born in Jordan. He admired and sought to emulate the "nineteen brothers," i.e., the September 11 hijackers, Osama bin Laden, and the leader of Al Qaeda in Iraq, Abu Musab al-Zarqawi. Shnewer openly discussed and planned attacks on military targets in New Jersey, Pennsylvania, and Delaware. Along with Omar, the government informant, he staked out the United States Army Base at Fort Dix, McGuire Air Force Base, Lakehurst Naval Air Station, and the United States Army Base at Fort Monmouth in NewJersey; the United States Coast Guard Base in Philadelphia, Pennsylvania; and Dover Air Force Base in Delaware. Shnewer also considered attacking the federal government building at 6^thand Arch Streets in Philadelphia and drove by the building to determine whether such an attack would be feasible. To accomplish an attack on these targets, Shnewer proposed deploying a gas tanker truck as a bomb, using roadside bombs or surface-to-air missiles, and spraying military targets with machinegun fire. He sought to acquire AK-47 machineguns from Omar to use in such an attack.

Dritan, Shain, and Eljvir Duka are brothers who were born in Albania. During the events that were the subject of the trial, they were in the United States illegally. In 2006 and 2007, the Dukas took at least two trips to the Poconos to train for jihad by firing weapons, attempting to buy automatic weapons, discussing jihad, and watching violent jihadist videos. The Dukas befriended government informant Bakalli, a fellow Albanian, and encouraged him to join them in avenging Muslims who had been oppressed in the United States and Israel. They viewed and praised a lecture, Constants on the Path to Jihad, by Anwar al-Awlaki, the prominent cleric and proponent of attacks against the United States military, and videos depicting attacks on American soldiers by violent jihadists in Iraq and elsewhere. In recorded conversations presented at trial, the Dukas described beheadings depicted in the videos as just punishment for traitors. The Dukas watched the beheading videos over and over again until they became inured to the spectacle. Dritan told Bakalli that, although at first he "couldn't take it," "[n]ow I see it and it's nothing, I do not care. I saw hundreds being beheaded." Similarly, Eljvir told Bakalli that the beheadings were difficult to watch at first, but that "[n]ow we can watch it no problem."

Like Shnewer, the Dukas sought to acquire firearms to further their plans. They could not acquire weapons lawfully because they were in the country illegally, so they turned to the black market. By January 2007, the three brothers told Bakalli they had acquired a shotgun, two semi-automatic rifles, and a pistol, and they continued to look for opportunities to buy machineguns.

Later that spring, Dritan Duka ordered nine fully automatic weapons - AK 47s and M-16s - from a contact of Omar in Baltimore. The FBI arranged a controlled transaction, and, on May 7, 2007, Dritan and Shain Duka went to Omar's apartment to retrieve their weapons. After handing Omar $1,400 in cash, Dritan and Shain examined and handled four fully automatic machinegunsand three semiautomatic assault rifles. They asked Omar for garbage bags to conceal the weapons (so they would look like golf clubs) as they carried them out to the car. Before they could get there, however, federal and state law enforcement officers entered Omar's apartment and arrested them. The entire transaction was captured on video by equipment installed in Omar's apartment by the FBI and was shown to the jury at trial.

Serdar Tatar is a lawful permanent resident in the United States who was born in Turkey. Tatar appears in the video of defendants' January 2006 training trip to the Poconos. After extensive discussions with Omar about Shnewer's plan to attack Fort Dix, Tatar agreed to help by providing Omar with a map of Fort Dix to use in planning such an attack. Regarding the overall plan to attack Fort Dix, Tatar told Omar in a recorded conversation, "I'm in, honestly, I'm in."

All five defendants were arrested on May 7, 2007, after Dritan and Shain Duka completed the controlled firearm purchase from Omar.

United States v. Duka, 671 F.3d 329, 333-35 (3d Cir. 2011).

Relevant to this Opinion, Mr. Shnewer was charged with one count of conspiracy to murder members of the United States military in violation of 18 U.S.C. § 1117 ("Count 1") and one count of attempt to murder members of the United States military in violation of 18 U.S.C. § 1114 ("Count 2"). Mr. Shnewer was also charged with one count of attempted possession of firearms in furtherance of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A) & (B)(ii). ("Count 4").¹ Mr. Shnewer was found guilty of Count 1 of conspiracy to kill United States military personnel and Count 4 of attempted possession of firearms in furtherance of a crime of violence. However, Mr. Shnewer, along with his codefendants, were found not guilty of Count 2 of attempting to kill United States military personnel. This Court sentenced Mr.Shnewer to life imprisonment on Count 1 and 360 months to be served consecutively on Count 4.

On appeal, the government conceded that it would not defend Mr. Shnewer's conviction on Count 4 because it charged Mr. Shnewer with the non-existent crime of attempted possession of firearms in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). See Duka, 671 F.3d at 353. Thus, the Third Circuit reversed Mr. Shnewer's conviction on Count 4. On remand, Mr. Shnewer was resentenced to life imprisonment on his remaining conviction on Count 1.

III. LEGAL STANDARD FOR § 2255 MOTION

A motion to vacate, set aside or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief if "the court finds ... [t]here has been such a denial or infringement of the constitutional rights of the prisoner as to render judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). "In considering a motion to vacate a defendant's sentence, 'the court must accept the truth of the movant's factual allegations unless they are clearly frivolous based on the existing record.'" United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)) (also citing R. Governing § 2255 Cases R. 4(b)). A District Court "is required to hold an evidentiary hearing 'unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.'" I...