United States v. Aljabri
| Decision Date | 30 July 2013 |
| Docket Number | Civil Action No. 12 C 7380,Criminal Action No. 06 CR 562 |
| Parties | UNITED STATES OF AMERICA, v. SALEM FUAD ALJABRI |
| Court | U.S. District Court — Northern District of Illinois |
Honorable Charles R. Norgle
Before the Court is Petitioner Salem Fuad Aljabri's ("Aljabri") Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Aljabri argues that he is entitled to a new trial based on alleged violations of the Equal Protection Clause of the Fifth Amendment pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). For the following reasons, the motion is denied.
On March 22, 2007, Aljabri was charged in a twenty-five count superseding indictment for his role in a scheme to defraud the government and collect money from the United States Department of Agriculture Food and Nutrition Service's Food Stamp Program by purchasing food stamps from customers for discounted amounts of cash. United States v. Aljabri, 363 F. App'x 403, 404 (7th Cir. 2010). On May 24, 2007, a jury convicted Aljabri of nine counts of wire fraud in violation of 18 U.S.C. § 1343, five counts of money laundering pursuant to 18 U.S.C. § 1956(a)(1)(A)(i), and ten counts1 of structuring under 31 U.S.C. § 5324(a)(3). On September 25, 2007, he was sentenced to 90 months' imprisonment. However, on appeal, theSeventh Circuit vacated Aljabri's conviction on the five counts of money laundering and remanded his case for resentencing. Id. at 408.
On February 28, 2011, while his criminal case was pending in this Court for resentencing, Aljabri filed a § 2255 motion seeking to vacate, set aside or correct his sentence. See United States v. Aljabri, No. 11-CV-1389 (N.D. Ill. filed Feb. 28, 2011). On June 17, 2011, the Court sentenced Aljabri to 84 months' imprisonment on the remaining nineteen counts. Aljabri once again filed a notice of appeal. Shortly thereafter, the government moved to dismiss Aljabri's § 2255 motion without prejudice as untimely because it was filed while his criminal case was still pending in the district court for resentencing. On September 26, 2011, the Court granted the government's motion to dismiss Aljabri's untimely § 2255 motion without prejudice.
On appeal, the Seventh Circuit once again remanded Aljabri's sentence due to a clerical error in the amount of the special assessment. See United States v. Aljabri, 476 F. App'x 85, 86 (7th Cir. 2012). The judgment was amended to reflect the proper amount on April 24, 2012. Following the conclusion of his direct appeal, Aljabri filed the instant § 2255 motion to vacate, set aside, or correct his sentence, alleging that the government committed Batson violations in exercising their peremptory challenges during jury selection. Specifically, Aljabri alleges that the government improperly struck two African-American women from the jury venire. The motion is fully briefed and before the Court.
Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255. This is an extraordinary remedy because a petitioner seeking§ 2255 relief has already "had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Specifically, § 2255 states:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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 such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). If a petitioner is able to successfully assert the aforementioned grounds, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b).
Post-conviction relief under § 2255, however, "is appropriate only for 'an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). In deciding a § 2255 motion for post-conviction relief, "evidence and inferences drawn from it are viewed in a light most favorable to the government." United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000).
It is well-established that "[a] § 2255 petition is neither a recapitulation nor a substitute for a direct appeal." McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996) (internal quotation marks and citation omitted); see also United States v. Fleming, 676 F.3d 621, 625 (7th Cir. 2012). Accordingly, a petitioner is barred from raising constitutional issues in a § 2255 motion if those issues could have been challenged and decided on direct appeal. Here, it is undisputed that Aljabri raises his Batson challenges on collateral review for the first time.Therefore, his claims are procedurally defaulted. Although, Aljabri can overcome the procedural default if he can show "good cause for failing to raise the issue and actual prejudice" or "that a refusal to consider the issue would be a 'fundamental miscarriage of justice.'" Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002) (quoting Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996)). Because Aljabri does not allege actual innocence, the Court need not consider whether a fundamental miscarriage of justice would result should his relief be foreclosed by the default. Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). However, the Court may consider Aljabri's Batson challenges for the first time on collateral review if he can show both good cause for the default and that prejudice would result should he be denied relief. Id. The government concedes that prejudice would be assumed if Aljabri is able to prove that it exercised its peremptory challenges in a racially discriminatory manner because "[t]he parties, the jurors, and society as a whole have a right to be free from intentional discrimination in the use of peremptory challenges." United States v. Stephens, 514 F.3d 703, 709 (7th Cir. 2008). As to good cause for failing to raise the issue earlier, Aljabri argues that he received ineffective assistance of counsel. Specifically, Aljabri argues that his trial counsel was ineffective for failing to raise Batson challenges during jury selection, and his appellate counsel was ineffective for failing to raise the same issue on appeal.
First, the Court turns to whether Aljabri can demonstrate good cause for his default by establishing that he received ineffective assistance of counsel. "The right to counsel is the right to effective assistance of counsel." Missouri v. Frye, 132 S. Ct. 1399, 1404 (2012). To prevail on an ineffective assistance of counsel claim, a petitioner must show that: (1) "counsel's performance was deficient," and that (2) "the deficient performance prejudiced the defense."Strickland v. Washington, 466 U.S. 668, 687 (1984). Because the Strickland test requires both deficient performance and prejudice, an ineffective assistance of counsel claim can fail for lack of prejudice "without ever considering the question of counsel's actual performance," and vice versa. United States v. Taylor, 569 F.3d 742, 748 (7th Cir. 2009) (citations omitted).
In order to establish deficient performance, "the petitioner must show 'that counsel's representation fell below an objective standard of reasonableness.'" Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011) (quoting Strickland, 466 U.S. at 688)). "The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Sussman v. Jenkins, 636 F.3d 329, 349 (7th Cir. 2011) (quoting Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (internal quotation marks and citation omitted)). Brown v. Finnan, 598 F.3d 416, 425 (7th Cir. 2010) (internal citations omitted). "Importantly, '[j]udicial scrutiny of counsel's performance must be highly deferential,' indulging a 'strong presumption' of effectiveness to combat 'the distorting effects of hindsight.'" Atkins v. Zenk, 667 F.3d 939, 944-45 (7th Cir. 2012) (quoting Strickland, 466 U.S. at 689) (alteration in original). In order to demonstrate prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see also Brown, 598 F.3d at 425 ().
To establish prejudice here, Aljabri must show that it is reasonably probable that his Batson claims would have been successful had they been raised by his various counsel at trial or on direct appeal. Therefore, the Court looks to the validity of Aljabri's Batson claims to determine whether he can sufficiently establish prejudice resulting from his alleged ineffective assistance of counsel.
It is well-established that "[t]he use of a peremptory strike to remove a potential juror solely because of his or her race violates the Equal Protection Clause." United States v....
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