United States v. Ramzi Ahmed Yousef ( 2012 )

11-3920
United States v. Ramzi Ahmed Yousef
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 4th day of September, two thousand twelve.
PRESENT:
JOSÉ A. CABRANES,
CHESTER J. STRAUB,
PETER W. HALL,
Circuit Judges.
__________________________________________
United States of America,
Appellee,
v. No. 11-3920
Ramzi Ahmed Yousef,
Defendant-Appellant.
_________________________________________
FOR DEFENDANT-APPELLANT: BERNARD V. KLEINMAN, White Plains, NY.
FOR APPELLEE: NICHOLAS J. LEWIN, Assistant United States
Attorney (Andrew L. Fish, Assistant United
States Attorney, on the brief ), for Preet Bharara,
United States Attorney, United States
Attorney’s Office for the Southern District of
New York, New York, NY.
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Appeal from a judgment of the United States District Court for the Southern District of
New York (Kevin T. Duffy, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal is DISMISSED for lack of jurisdiction.
Defendant-appellant Ramzi Ahmed Yousef (“Yousef”) appeals from the July 22, 2011 order
of the District Court transferring his petition for a writ of habeas corpus to the United States
District Court for the District of Colorado. We assume the parties’ familiarity with the underlying
facts, the procedural history of this case, and the issues on appeal.
At the outset, we must consider whether we have jurisdiction to hear this appeal under 28
U.S.C. § 1291, which provides courts of appeals with jurisdiction to consider appeals from “final
decisions of the district courts.” 28 U.S.C. § 1291. The parties do not dispute that an order
transferring a habeas petition is not a final decision within the meaning of § 1291. See Cruz v. Ridge,
383 F.3d 62, 64 (2d Cir. 2004); Murphy v. Reid, 332 F.3d 82, 83 (2d Cir. 2003).
In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), the Supreme Court recognized an
exception to the final judgment rule, which has come to be known as the “collateral order doctrine.”
Id. at 545–47; see Murphy, 332 F.3d at 83–84. To qualify for the exception, “an order must
(1) conclusively determine the disputed question, (2) resolve an important issue completely separate
from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.”
Id. at 83 (internal quotation marks omitted). We have previously held that orders transferring habeas
petitions are not reviewable under the collateral order doctrine. See Cruz, 383 F.3d at 64–65; Murphy,
332 F.3d at 84–85. We decline the defendant’s invitation to revisit that holding in this case, and we
therefore conclude that we lack jurisdiction over this appeal.
In the absence of jurisdiction, we also cannot consider the claim of Yousef’s counsel that the
District Court improperly refused to sign a voucher for funds under the Criminal Justice Act
(“CJA”), 18 U.S.C. § 3006A. See United States v. Yousef, 395 F.3d 76, 78 (2d Cir. 2005). We note,
however, that it would be far preferable for the transferor District Court to provide a reason on the
record for his decision not to authorize CJA payment. In the event that such a reason is not
forthcoming, we take the liberty of advising the transferee District Court (the District of Colorado)
to make further inquiries into the matter.
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CONCLUSION
We have considered all of Yousef’s other arguments on appeal and conclude that each of
them is without merit. Accordingly, the appeal is DISMISSED for lack of jurisdiction.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
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