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Saeed v. United States

United States District Court, N.D. Iowa, Eastern Division, Waterloo

November 5, 2019

AHMAD SAEED, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          INITIAL REVIEW ORDER

          JOHN A. JARVEY, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This order is the court's initial review, as required by Rule 4 of the Rules Governing § 2255 Proceedings, to determine whether any of the petitioner's claims in his 28 U.S.C. § 2255 challenge to his guilty plea and sentence have arguable merit. This order also addresses some other preliminary matters. Specifically, this case is before the court on the petitioner's May 15, 2018, Motion To Vacate Sentence [Dkt. No. 1], filed by retained counsel; the petitioner's March 5, 2019, pro se Motion To Proceed Pro Se On § 2255 Amended Motion [Dkt. No. 2]; and the petitioner's March 5, 2019, pro se Motion To Amend § 2255 Motion To Vacate Sentence [Dkt. No. 3].

         I. INTRODUCTION

         A. Criminal Proceedings

         Petitioner Ahmad Saeed was one of three defendants charged in an indictment filed April 9, 2015, in No. CR 15-2005. A superseding indictment followed on May 14, 2015, as well as a second superseding indictment on September 23, 2015. In the second superseding indictment, Saeed was charged, in Count 1, with conspiracy to distribute controlled substances and controlled substance analogues, all of which were cannabinoids, in violation of 21 U.S.C. § 846, and, in Count 5, with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). The second superseding indictment also sought “drug forfeiture, ” pursuant to 21 U.S.C. § 853, of property including, but not limited to, a money judgment in the amount of $750, 000, and “money laundering forfeiture, ” pursuant to 18 U.S.C. § 982(a)(1), of property including, but not limited to, $750, 000. On October 20, 2015, Saeed pleaded guilty to both counts against him before Chief United States Magistrate Judge Jon S. Scoles, and the court adopted Judge Scoles's report and recommendation and accepted Saeed's guilty pleas on that same day. A Preliminary Order Of Forfeiture was entered on February 3, 2016.

         On August 2, 2016, a second attorney appeared on behalf of Saeed, and on August 17, 2016, Saeed's original attorney was allowed to withdraw. On January 3, 2017, Saeed's second attorney filed Saeed's Motion To Withdraw Guilty Plea. After a hearing on January 11, 2017, United States Magistrate Judge Kelly Mahoney filed a report and recommendation that the court deny Saeed's Motion To Withdraw Guilty Plea. No. party filed timely objections to the report and recommendation. At Saeed's sentencing hearing on February 7, 2017, the court adopted Judge Mahoney's report and recommendation and denied Saeed's Motion To Withdraw Guilty Plea. The court then sentenced Saeed to a total term of 210 months, consisting of 150 months of imprisonment on Count 1 and 60 months of imprisonment on Count 5, with the sentences to run consecutively. The court also ordered forfeiture of the property set out in the Preliminary Order Of Forfeiture and that Saeed's forfeiture obligation would be joint and several with co-defendant Muhammad Anwar.

         A third attorney appeared for Saeed on February 20, 2017. That attorney filed a Notice Of Appeal on Saeed's behalf. Saeed's second attorney was granted leave to withdraw on February 21, 2017. On May 16, 2017, the Eighth Circuit Court of Appeals dismissed Saeed's appeal on his motion. Mandate issued the next day.

         B. Saeed's § 2255 Motion

         As mentioned, above, Saeed filed his original § 2255 Motion on May 15, 2018, with the assistance of counsel-specifically, his third attorney, who had filed Saeed's Notice Of Appeal and represented him on appeal. On March 5, 2019, however, Saeed filed a pro se Motion To Proceed Pro Se On § 2255 Amended Motion, on the ground that he can no longer afford counsel's services. On March 5, 2019, Saeed also filed his pro se Motion To Amend § 2255 Motion To Vacate Sentence, seeking leave to replace three (of nine) of his original allegations of ineffective assistance of his first attorney with a single allegation.

         Saeed's March 5, 2019, pro se Motion To Proceed Pro Se On § 2255 Amended Motion is granted, and his counsel is granted leave to withdraw. Furthermore, because there have been no proceedings or orders on Saeed's § 2255 Motion, and the respondent has not yet been required to move or plead in response, Saeed's March 5, 2019, pro se Motion To Amend § 2255 Motion To Vacate Sentence is granted in the interest of justice. See Fed. R. Civ. P. 15(a)(2) (directing that the court “should freely give leave [to amend a pleading] when justice so requires, ” if a movant is not entitled to amend as a matter of course pursuant to Rule 15(a)(1)).

         Thus, as amended, Ground One of Saeed's § 2255 Motion asserts ineffective assistance, in seven respects, of his original attorney, who represented him through his guilty plea; Ground Two asserts ineffective assistance, in six respects, of his second attorney, who represented him through his Motion To Withdraw Guilty Plea and sentencing;[1] and Ground Three seeks retroactive application of a Supreme Court case abolishing joint and several liability for forfeiture and allowing forfeiture only of property a defendant obtained himself.

         II. LEGAL ANALYSIS

         A. Applicable Standards

         Title 28, of the United States Code, Section 2255, provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground (1) that the sentence was imposed in violation of the Constitution or laws of the United States, or (2) that the court was without jurisdiction to impose such sentence, or (3) that the sentence was in excess of the maximum authorized by law, or (4) 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). Thus, as the Eighth Circuit Courts of Appeals recently explained, “Section 2255 offers potential remedies in several circumstances, including cases shown to contain jurisdictional errors, constitutional errors, and errors of law.” Raymond v. United States, 933 F.3d 988, 991 (8th Cir. 2019). Nevertheless, “‘[c]laims which were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255.'” Thompson v. United States, 872 F.3d 560, 565 (8th Cir. 2017) (quoting Davis v. United States, 673 F.3d 849, 852 (8th Cir. 2012)).

         “An error of law may be remedied under § 2255 only when it ‘constitute[s] “a fundamental defect which inherently results in a complete miscarriage of justice.”'” Raymond, 933 F.3d at 991 (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979), in turn quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Even a constitutional error does not automatically require § 2255 relief, because “[a] constitutional error is harmless in a post-conviction proceeding if the error did not have ‘substantial and injurious effect or influence' on the outcome of the proceeding and caused no ‘actual prejudice' to the defendant.” Cravens v. United States, 894 F.3d 891, 893 (8th Cir. 2018) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

         A claim of ineffective assistance of counsel, like the ones at issue, here, is a claim of constitutional error, because it alleges a violation of the Sixth Amendment right to counsel. Lafler v. Cooper, 566 U.S. 156, 162 (2012). That right exists “in order to protect the fundamental right to a fair trial.” Strickland v. ...


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