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Hakim v. United States

United States District Court, D. South Dakota, Southern Division

August 27, 2018

MAHDI HAKIM, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER DENYING RULE 60(B) MOTION

          LAWRENCE L. PIERSOL, UNITED STATES DISTRICT JUDGE

         Mahdi Hakim ("Hakim") is a federal prisoner serving a statutory mandatory life sentence for a conviction of conspiracy to possess with intent to distribute or to distribute 50 grams or more of a mixture or substance containing cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1) and 846. In 2010, Hakim filed his first pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. In that motion, Hakim alleged insufficient evidence to support his conviction, court error in enhancing his sentence pursuant to 21 U.S.C. §§ 841 and 851, ineffective assistance of his trial counsel and violation of due process. On June 2, 2010, this Court denied the motion. (Doc. 98.) Hakim now asks the Court to allow him to reopen his § 2255 habeas motion under Federal Rule of Civil Procedure 60(b) in order to "overcome a procedural barrier to its adjudication." (Doc. 110 at 12.) For the reasons stated below, the Rule 60(b) motion will be denied.

         BACKGROUND

         In 2005, Hakim was indicted for conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Prior to trial, the government filed an information pursuant to 21 U.S.C. § 851(a)(1), stating its intent to enhance Hakim's sentence based upon his two prior convictions for felony drug offenses. In August, 2006, Hakim was tried and convicted by a jury.

         On November 7, 2006, Hakim was sentenced to life imprisonment because of the enhanced mandatory minimum sentence due to his two prior felony drug convictions. He filed a direct appeal challenging the sufficiency of the evidence to convict him. In 2007, the Eighth Circuit affirmed Hakim's conviction after finding that the evidence, including the testimony of Ronnie Shaw, the central government witness was sufficient to support his conviction. See United States v. Hakim, 491 F.3d 843 (8th Cir. 2007).

         In Hakim's first § 2255 motion to vacate, Hakim argued that the government failed to prove a conspiracy because its central witness, Ronnie Shaw, presented false testimony. This claim was denied because Hakim raised the issue on appeal and was precluded from relitigating it in his § 2255. Next, Hakim challenged whether his two prior convictions could be used to enhance his sentence as he believed they constituted only one prior offense. This claim was barred by Hakim's waiver of the challenge, and the statute of limitations under § 851(e). However, the Court's analysis of Hakim's ineffective assistance of counsel claims required the Court to examine his claim that the two prior offenses were only one offense, and the Court found the evidence established that the offenses were separate and distinct criminal episodes. (Doc. 98 at 8-9.) Hakim's claim that his constitutional right to effective assistance of counsel was violated by his lawyer's failure to object to the sentence enhancement and to challenge Hakim's two prior felony convictions was denied on the merits. Finally, Hakim asserted that his due process rights were violated because the government's § 851 information failed to notify him that he would be subject to a life sentence. Noting that this claim was procedurally barred for failure to raise it on appeal, the Court nonetheless held that the government's information complied with due process notice requirements.

         On July 16, 2012, Hakim filed a second § 2255 motion, arguing that he is actually innocent and that his conviction must be vacated under the then-recent United States Supreme Court decision in DePierre v. United States, 564 U.S. 70 (2011) (establishing that "cocaine base," as used in 21 U.S.C. § 841(b)(1), means not only crack cocaine, but all cocaine in its chemically basic form). Hakim's second § 2255 motion was dismissed because it was a successive petition without authorization, it was untimely, and because Hakim's argument that DePierre decriminalized his conduct lacked merit.

         On July 11, 2017, Hakim filed a third § 2255 motion, arguing that his conviction violated the Constitution because the United States lacked jurisdiction over the land where the crime occurred. The third motion was denied as a successive petition without authorization and on the merits.

         Hakim now asks the Court to set aside its June 2, 2010 Order denying his first § 2255 motion pursuant to Rule 60(b). He argues that recent opinions of the United States Supreme Court support claims that were previously unavailable. Hakim's 33-page motion is convoluted, but the Court has gleaned the following claims from a close reading of the motion: 1) that his mandatory minimum life sentence amounts to cruel and unusual punishment in violation of the Eighth Amendment; 2) that the 100-to-l crack cocaine to powder cocaine quantity ratio in effect at the time of Hakim's sentencing discriminates on the basis of race in violation of the Equal Protection clause; 3) that the penalty imposed under § 841(b) far exceeded what was available for the underlying offense based on factors (prior convictions) that were not submitted to a jury and proven by a reasonable doubt, in violation of due process as set forth, in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S.Ct. 2151 (2013); and 4) that his sentence violates the Separation of Powers Doctrine.

         Finally, in the last pages of his Rule 60(b) motion, Hakim appears to argue that his prior felony drug offenses do not qualify as § 841(b)(1)(A) predicate convictions under the Supreme Court's decisions in Moncrieffe v. Holder, 569 U.S. 184 (2013) (Georgia conviction for possessing a small amount of marijuana with intent to distribute, where there was no indication that noncitizen sought remuneration, did not qualify as an "aggravated felony" for purposes of deportation under the Immigration Nationality Act), and Descamps v. United States, 570 U.S. 254 (2013) (in determining whether a prior conviction qualifies as a predicate conviction under the Armed Career Criminal Act, a federal court may not use the modified categorical approach where the statute of conviction has a single, indivisible set of elements). Hakim seems to argue that Moncrieffe and Descamps announced new rules of law that justify a finding that his prior convictions are not predicate felony drug offenses.

         DISCUSSION

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDP A) restricts filing second or successive habeas applications in order to serve the AEDPA's goals of finality and prompt adjudication. See Crawford v. Minnesota, 698 F.3d 1086, 1090 (8th Cir. 2012). "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A); see also 28 U.S.C. § 2255(h). A petitioner's failure to seek authorization from an appellate court before filing a second or successive habeas petition acts as a jurisdictional bar. See Burton v. Stewart, 549 U.S. 147 (2007).

         When a motion filed pursuant to § 2255 has been denied and the prisoner files a Rule 60(b) motion, the district court must first determine whether the Rule 60(b) motion in fact amounts to a second or successive collateral attack under § 2255. See Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (per curiam). If the Rule 60(b) motion is actually a second or successive collateral attack, the district court must dismiss the motion for failure to obtain authorization from the court of appeals or, in its discretion, transfer the motion to the court of appeals. Id.

         Rule 60 governs the relief from a judgment, order, or proceeding. FED.R.Qv.P. 60. Specifically, Rule 60(b) is a catch-all provision that authorizes a court to grant relief from a final judgment upon limited grounds, including any reason that justifies relief. See Rule 60(b)(6). Courts are directed to use their broad powers under Rule 60(b)(6) only in "extraordinary circumstances" which "rarely occur" in the habeas context. Davis v. Kelley,855 F.3d 833, 835 (8th Cir. 2017). "In determining whether extraordinary circumstances are present, a court may consider a wide range of factors. These may include, in an appropriate case, 'the risk of injustice to the parties' and 'the ...


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