Amin Rashid v. Warden Philadelphia FDC , 658 F. App'x 636 ( 2016 )

ALD-365 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-1653
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AMIN A. RASHID,
Appellant
v.
WARDEN PHILADELPHIA FDC
__________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-15-cv-00274)
District Judge: Cynthia M Rufe
__________________________________
Submitted for Possible Dismissal under 28 U.S.C. § 1915(e)(2) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 28, 2016
Before: AMBRO, SHWARTZ and NYGAARD, Circuit Judges
(Opinion filed: August 3, 2016)
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OPINION*
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PER CURIAM
Appellant Amin A. Rashid appeals from an order of the District Court dismissing
his petition for writ of habeas corpus, 28 U.S.C. § 2241, for lack of jurisdiction. For the
reasons that follow, we will summarily affirm.
*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute
binding precedent.
Rashid was charged by Indictment on August 21, 2008 with two counts of mail
fraud, in violation of 18 U.S.C. § 1341, and one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1), (c)(5). On May 28, 2009, a Superseding
Indictment charged him with ten counts of mail fraud, eight counts of aggravated identity
theft, and one count of forging or counterfeiting postal money orders, in violation of 18
U.S.C. § 500. A jury found Rashid guilty of nine counts of mail fraud and all eight
counts of aggravated identity theft, and not guilty of one count of mail fraud and of
forging or counterfeiting postal money orders. In a Judgment entered on July 24, 2013,
the District Court sentenced Rashid to a total term of imprisonment of 240 months.1 We
affirmed on November 25, 2014, see United States v. Rashid, 593 F. App'x 132 (3d Cir.
2014). The United States Supreme Court denied certiorari on May 18, 2015.
Meanwhile, on January 20, 2015, Rashid filed a petition for writ of habeas corpus,
28 U.S.C. § 2241, in the United States District Court for the Eastern District of
Pennsylvania, the district where he is confined, claiming that he is actually innocent of a
1980 District of Oregon conviction for interstate transportation of stolen property, in
violation of 18 U.S.C. 2314, that was used to enhance his 2013 Eastern District of
Pennsylvania sentence. He argued that, because he was acquitted of a charge of mail
fraud in the 1980 trial, it was inconsistent and improper to find him guilty of interstate
1
The United States Probation Office determined that Rashid had a criminal history
category of III, making his advisory Guidelines imprisonment range 108 to 135 months
before application of the mandatory consecutive sentences for his identity theft
convictions under 18 U.S.C. § 1028A. For Rashid’s eight convictions under § 1028A,
the Government argued that 24 months should be added to the low end of the range and
that eight 24-month terms should be added to the high end of the range, producing a final
advisory Guidelines range of 132 to 327 months.
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transportation of money taken by fraud, and thus improper for the District Court to have
enhanced his 2013 sentence based on this prior conviction. Rashid sought to have both
the enhancement and the allegedly wrongful 1980 conviction vacated. Shortly after filing
his petition, Rashid filed a motion to disqualify the District Court for personal bias
pursuant to 28 U.S.C. § 455(a). The Court denied the motion on the ground that Rashid
had cited no evidence of an extrajudicial source of bias or of any action by the Court
demonstrating personal bias. The Government then responded in opposition to the §
2241 petition, arguing that jurisdiction was lacking.
In an order entered on January 22, 2016, the District Court dismissed the § 2241
petition for lack of jurisdiction. The Court held that, because Rashid had already served
the District of Oregon sentence, he was no longer “in custody” and thus the Court was
without jurisdiction to vacate the 1980 sentence and conviction. The Court further held
that Rashid could not resort to a § 2241 petition to challenge the enhancement to his 2013
Eastern District of Pennsylvania sentence because he still had the opportunity to file a
timely motion to vacate sentence, 28 U.S.C. § 2255, to challenge that sentence; he
therefore failed to demonstrate that the remedy available to him under § 2255 is
inadequate or ineffective.
Rashid filed a timely motion for reconsideration and then a timely notice of
appeal, resulting in the instant appeal. The appeal was stayed, Fed. R. App. P.
4(a)(4)(A), pending disposition of the reconsideration motion. On April 4, 2016, and
thus more than 28 days after the entry of judgment, see Fed. R. Civ. P. 59(e), Rashid filed
a motion to reopen seeking the District Court’s disqualification. The Government
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responded in opposition to the motion to reopen and asked the District Court to enjoin
Rashid from future filings in both the instant action and his criminal case, D.C. Crim. No.
08-cr-00493, arguing that he was engaging in abusive and vexatious litigation. On May
25, 2016, Rashid filed his § 2255 motion in his criminal case; it was signed and dated
May 16, 2016.
In an order entered on June 21, 2016, the District Court denied Rashid’s motion
for reconsideration as meritless, denied his motion to reopen seeking disqualification as
meritless, and denied the Government’s motion to enjoin Rashid from filing anything
further in his § 2241 case as moot.2 Rashid did not file an amended notice of appeal
seeking review of this order nor did he appeal the denial of his motion to reopen seeking
disqualification.
We have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s order
dismissing Rashid’s § 2241 petition and interlocutory order denying his motion for
disqualification.3 Our Clerk granted Rashid leave to appeal in forma pauperis and
2
The District Court granted the Government’s motion with respect to Rashid’s criminal
case. The Court found that he had engaged in vexatious and abusive litigation, including
filing numerous motions seeking to relitigate issues that had already been decided,
multiple non-meritorious motions to recuse, thirty post-trial motions, and fourteen non-
meritorious challenges to the indictment, among other findings. The Court thus enjoined
him from filing any further challenges, except for items related to his recently filed §
2255 motion, without prior approval from the Court. The propriety of this injunction,
imposed in Rashid’s criminal case, is not before us.
3
Although the District Court’s order denying the motion for reconsideration is the final
order, we lack jurisdiction to review it because Rashid did not appeal it and the order did
not decide new issues not covered by the District Court’s January 22, 2016 Order. Fed.
R. App. Pro. 4(a)(4)(B)(ii); Carrascosa v. McGuire, 520 F.3d 249, 253-54 (3d Cir. 2008).
We lack jurisdiction to review Rashid’s post-judgment motion to reopen seeking
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advised him that the appeal was subject to summary dismissal under 28 U.S.C. §
1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He
has submitted written argument in support of the appeal, citing our decision in United
States v. Tyler, 732 F.3d 241 (3d Cir. 2013), which we have considered.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The
District Court properly dismissed Rashid’s § 2241 petition for lack of jurisdiction. A
motion to vacate sentence under 28 U.S.C. § 2255 is the presumptive means for a federal
prisoner to challenge the validity of his conviction or sentence, see Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002), after he has completed his direct appeal. When
Rashid filed this § 2241 petition, he had not yet filed a § 2255 motion challenging his
Eastern District of Pennsylvania conviction and sentence. In certain limited
circumstances, a petitioner may seek relief under § 2241 if the remedy provided by §
2255 is inadequate or ineffective to test the legality of his detention, see In re: Dorsainvil,
119 F.3d 245, 249-51 (3d Cir. 1997), but § 2255 is not inadequate or ineffective where
the petitioner still has the opportunity to file a timely § 2255 motion that is neither second
nor successive. Following the District Court’s decision, Rashid filed his § 2255 motion,
which remains pending. He therefore has failed to show that § 2255 is inadequate or
ineffective to test the legality of his detention pursuant to the Eastern District of
Pennsylvania conviction and sentence. Tyler does not support jurisdiction under the
disqualification, a motion that did not toll the time for taking an appeal, Fed. R. App. P.
4(a)(4)(A)(vi); Rashid must separately appeal that order and he has not done so.
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circumstances presented here. 732 F.3d at, 245 n.2, 246 (§ 2255 petition is inadequate
when petitioner asserts a claim of actual innocence but is otherwise barred from
challenging legality of conviction under § 2255).
The District Court also properly determined that it was without § 2241 jurisdiction
to vacate Rashid’s 1980 District of Oregon sentence and conviction. A prisoner may
seek federal habeas corpus relief only if he is in custody in violation of the United States
Constitution or federal law. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). If a sentence
has fully expired, the petitioner is no longer “in custody;” the petitioner satisfies the
custody requirement only by directly attacking a sentence he is serving at the time he
files his petition. Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401-02
(2001). Rashid must rely on 28 U.S.C. § 2255 to attack the sentence he is currently
serving.
Last, we summarily affirm the District Court’s interlocutory order denying
Rashid’s motion for recusal; that motion was frivolous.
For the foregoing reasons, we will summarily affirm the order of the District Court
dismissing Rashid’s § 2241 petition for lack of jurisdiction and interlocutory order
denying his motion for recusal.
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