United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Mushin Hanif Abdur-Rahiim is an inmate confined in the United States Penitentiary ("USP")-McCreary located in Pine Knot, Kentucky. Proceeding without an attorney, Abdur-Rahiim has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his criminal conviction from the Superior Court of the District of Columbia ("the D. C. Superior Court").
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court must deny the relief sought "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). Because Abdur-Rahiim is not represented by an attorney, the Court evaluates his petition under a more lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). Thus, at this stage of the proceedings, the Court accepts Abdur-Rahiim's factual allegations as true and liberally construes his legal claims in his favor. Because a § 2241 petition is not the proper vehicle for obtaining the relief which Abdur-Rahiim seeks, his habeas petition will be denied.
ABDUR-RAHIIM'S LITIGATION HISTORY
On May 5, 1994, Abdur-Rahiim was indicted by a grand jury in the D. C. Superior Court for first-degree murder while armed, in violation of D.C. Code §§ 22-2401-3202 (1989); carrying a pistol without a license ("CPWL"), in violation of § 22-3204(a); and possession of a firearm during a crime of violence ("PFCV"), in violation of § 22-3204(b). The case went to trial and on March 8, 1995, Abdur-Rahiim was convicted on all counts and sentenced to the following concurrent prison terms: thirty years to life for murder; one year for CPWL; and five to fifteen years for PFCV. The conviction was affirmed on direct appeal to the District of Columbia Court of Appeals ("D.C. Court of Appeals").
On September 17, 1997, Abdur-Rahiim filed, through counsel, a motion for a new trial pursuant to D.C. Code § 23-110, alleging ineffective assistance of trial counsel. On November 16, 1998, the D. C. Superior Court denied Abdur-Rahiim's motion for a new trial. On August 26, 2002, Abdur-Rahiim filed another challenge to his conviction under D.C. Code § 23-110, entitled "Postconviction Motion to Vacate Sentence and Set Aside Judgment, " arguing that he had been denied effective assistance of appellate counsel. On June 18, 2003, Abdur-Rahiim filed a supplemental § 23-110 motion, seeking to withdraw his ineffective assistance of appellate counsel argument, and arguing instead that the trial court had failed to properly instruct the jury about the "malice" element of first degree murder.
On February 26, 2004, the D.C. Superior Court denied Abdur-Rahiim's § 23-110 motion, and on October 27, 2004, the D.C. Court of Appeals affirmed the denial of that § 23-110 motion. In November 2004, Abdur-Rahiim filed a petition for rehearing en banc, which motion was denied on January 11, 2005.
In April 2005, while incarcerated in the USP-Big Sandy, Abdur-Rahiim filed his first petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254, again arguing that the instructions given at his criminal trial failed to include malice as an element of first degree murder. United States v. Abdur-Rahiim, No. 7:05-CV-133-KKC-PEP (E. D. Ky. 2005) [R. 1, therein]. On January 26, 2006, Magistrate Judge Peggy E. Patterson issued a Report and Recommendation ("R & R") concluding that the respondent's motion to dismiss the § 2254 petition should be granted, because this Court lacked jurisdiction to entertain it. [R. 20, therein]
In her R & R, Magistrate Judge Patterson noted that when Abdur-Rahiim filed his supplemental § 23-110 motion in the D.C. Superior Court in June 2003, he raised the same defective jury instruction issue that he was asserting in his § 2254 petition; that the D.C. Superior Court had addressed and rejected that claim on the merits on February 26, 2004; and that the D. C. Court of Appeals had affirmed the D.C. Superior Court's ruling on this issue. [ Id., pp. 7-8] Based on those facts, Magistrate Judge Patterson determined that Abdur-Rahiim "... had not been deprived of a full and fair opportunity to litigate a colorable claim in the District of Columbia courts, " id., p. 8, and that his "... personal lack of success in pursuing relief under D.C. Code § 23-110 does not render that remedy inadequate or ineffective." [ Id., p. 9] She therefore concluded that Abdur-Rahiim was not entitled to relief under § 2254 because he had not established that his local remedy under D.C. Code § 23-110 had been inadequate or ineffective to challenge his convictions. [ Id., pp. 9-11] Abdur-Rahiim did not file objections to the R & R, and on March 27, 2006, Judge Karen K. Caldwell entered an Order adopting the R & R and granting the Respondent's motion to dismiss the § 2254 petition. [R. 24, therein]
On May 8, 2006, while incarcerated in the Federal Correctional Institution ("FCI")-Fairton, located in Fairton, New Jersey, Abdur-Rahiim filed another petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Columbia, challenging his conviction under D.C. Code § 16-1901. Abdur-Rahiim v. Schultz, No. 1:06-CV-852-UNA (D.D.C. 2006) [R. 1, therein] On that same date, the district court entered a Memorandum Opinion and Order dismissing the case for lack of jurisdiction. [R. 4 and 5, therein] The district court explained that all challenges to judgments of conviction entered by the D.C. Superior Court must be pursued under D.C. Code § 23-110, and that challenges under § 16-1901 were permissible only in the event § 23-110 was an inadequate or ineffective remedy. [R. 4, p. 12, therein] The district court concluded that Abdur-Rahiim had not demonstrated that § 23-110 was either inadequate or ineffective to challenge his conviction; that he had instead merely alleged that his § 23-110 motion was unsuccessful; and that it therefore lacked jurisdiction to entertain Abdur-Rahiim's D. C. Code § 16-1901 motion. [ Id. ] The district court then dismissed the case without prejudice. [ Id. ]
In March 2007, while still confined in FCI-Fairton, Abdur-Rahiim filed yet another petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, this time in federal court in New Jersey, again attempting to collaterally challenge his conviction and sentence. Abdur-Rahiim v. Schultz, No. 1:07-CV-01339-RMB (D. N. J. 2007) [R. 1, therein] On April 19, 2007, the district court entered an order denying Abdur-Rahiim's § 2241 motion for lack of jurisdiction. [R. 2, therein] The district court explained that the fact that Abdur-Rahiim had previously and unsuccessfully sought relief under D. C. Code § 23-110 did not render that remedy inadequate or ineffective. [ Id., pp. 5-6]
CLAIMS ASSERTED IN THE § 2241 PETITION
In his current § 2241 petition, Abdur-Rahiim continues to challenge his D.C. conviction, this time alleging that the D.C. Court of Appeals erroneously refused to recall the mandate in one of the appeals that he filed [R. 1, pp. 7-8]; that he was denied effective assistance of appellate counsel in numerous instances, both on direct appeal and in the appeal of the denial of his § 23-110 motion [ id., pp. 8-15; pp.23-30]; and that he was denied effective assistance of counsel at various stages of his criminal trial in the D.C. Superior Court [ id., pp. 15-22]. Abdur-Rahiim's claim challenging the decision of the D.C. Court of Appeals appears to fall under the Fifth Amendment of the U.S. Constitution, which guarantees due process of law. His claims alleging ineffective assistance of trial and appellate counsel fall under the Sixth Amendment of the U.S. Constitution, which guarantees effective assistance of counsel during criminal proceedings.
Abdur-Rahiim seeks an order (1) reinstating his direct (initial) criminal appeal; (2) reinstating his initial § 23-110 motion and/or vacating the denial of his initial § 23-110 motion; and (3) appointing him ...