Alexander Nosov v. Warden Schuylkill FCI , 634 F. App'x 379 ( 2016 )

PS-055 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1335
___________
ALEXANDER NOSOV,
Appellant
v.
WARDEN SCHUYLKILL FCI
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-15-cv-00097)
District Judge: Honorable Edwin M. Kosik
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 20, 2016
Before: AMBRO, GREENAWAY, JR. and SLOVITER, Circuit Judges
(Opinion filed: February 10, 2016)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
Alexander Nosov, an inmate confined at FCI-Schuylkill, appeals from an order of
the United States District Court for the Middle District of Pennsylvania dismissing his
habeas petition under 28 U.S.C. § 2241. For the reasons that follow, we will affirm the
judgment of the District Court.
In 2001, a jury in the Southern District of New York found Nosov guilty of three
counts: (1) Kidnapping in Aid of Racketeering, 18 U.S.C. §§ 1959(a)(1) and (2); (2)
Murder in Aid of Racketeering, 18 U.S.C. §§ 1959(a)(1) and 2; and (3) Conspiracy to
Commit Kidnapping, 18 U.S.C. §§ 1201(a)(1) and (c).1 He was sentenced to a term of
life imprisonment on each count, to run concurrently with each other, as well as a
mandatory $300 special assessment. His direct appeal was unsuccessful. See United
States v. Nosov, 119 F. App’x 311, 313 (2d Cir. 2004). Nosov filed a motion pursuant to
28 U.S.C. § 2255, which was denied on the merits. The United States Court of Appeals
for the Second Circuit affirmed. Nosov v. United States, 526 F. App’x 127, 129 (2d Cir.
2013).
In January 2015, Nosov – confined in the Middle District of Pennsylvania – filed a
petition under 28 U.S.C. § 2241 in that District Court. He asserted that his convictions
based on aiding and abetting liability were invalid in light of the Supreme Court’s ruling
in Rosemond v. United States, 134 S. Ct. 1240, 1243 (2014) (holding that for a defendant
to be found guilty of aiding and abetting under 18 U.S.C. § 924(c), the Government must
1
He was found not guilty of two counts: (1) Kidnapping, 18 U.S.C. §§ 1201(a)(1); and
(2) Use and Carrying of a Firearm, 18 U.S.C. § 924(c).
2
prove that the defendant “actively participated in the underlying . . . crime with advance
knowledge that a confederate would use or carry a gun during the crime’s commission.”).
The District Court dismissed the § 2241 petition for lack of jurisdiction, holding that
Nosov failed to demonstrate that the remedy provided under § 2255 was inadequate or
ineffective to test the legality of his detention. Although the District Court did not
specifically address the effect of Rosemond, it noted that “[t]o the extent that [Nosov]
attempts to rely on new case law not previously available to him when he sought relief
pursuant to § 2255 . . ., he is first required to seek permission from the United States
Court of Appeals for the Second Circuit for leave to file a successive petition, prior to
filing any § 2241 petition in this Court.”
Nosov appealed. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and
may affirm the District Court on any basis supported by the record. See Brightwell v.
Lehman, 637 F.3d 187, 191 (3d Cir. 2011).
The Government asserts, inter alia, that we need not address Nosov’s challenge to
his aiding and abetting convictions under the concurrent sentence doctrine. We agree.
Pursuant to that doctrine, a federal court may decline to review an alleged error where
concurrent sentences were imposed on separate counts, where the alleged error is
associated with only one count, and where the remaining sentences are unassailable. See
United States v. McKie, 112 F.3d 626, 628 n.4 (3d Cir. 1997). Because “the defendant
remains sentenced in any event, reviewing the concurrently sentenced counts is of no
utility. The practice is eminently practical and conserves judicial resources for more
3
pressing needs.” Jones v. Zimmerman, 805 F.2d 1125, 1128 (3d Cir. 1986) (citations
omitted). The doctrine should be applied, however, only when it is apparent that the
defendant will not suffer collateral consequences from the unreviewed conviction. See
United States v. Clemons, 843 F.2d 741, 743 n.2 (3d Cir. 1988).
Nosov attacked only the aiding and abetting convictions, which resulted in life
sentences. But because he is also serving a life sentence on the conspiracy to commit
kidnapping conviction, any potential relief in this habeas proceeding would not reduce
the time he is required to serve. Jones, 805 F.2d at 1129 (holding that habeas challenge
that would affect only one of two concurrent counts need not be reached under concurrent
sentence doctrine). We note that, in addition to the concurrent life sentences, Nosov was
required to pay a mandatory $300 special assessment. We recently held, however, that
“the burden of a special assessment – even one imposed in conjunction with a wrongful
conviction – does not amount to ‘custody’ [and] . . . cannot serve as the basis for a claim
under section 2255.” United States v. Ross, 801 F.3d 374, 382 (3d Cir. 2015)
(distinguishing between application of concurrent sentence doctrine on direct appeal and
in collateral review); see also Kravitz v. Commonwealth of Pa., 546 F.2d 1100, 1102 (3d
Cir. 1977) (stating that the “in custody” requirement of 28 U.S.C. § 2255 is equivalent to
the custody requirement of §§ 2241 and 2254). Nosov has not identified any collateral
consequences of the aiding and abetting convictions “that would not equally be required
by the” conspiracy to commit kidnapping conviction. Ryan v. United States, 688 F.3d
845, 849 (7th Cir. 2012). Under these circumstances, we conclude that it is appropriate
4
to invoke the concurrent sentence doctrine. Thus, we will not address whether Rosemond
undermines Nosov’s aiding and abetting convictions.
For these reasons, we will affirm the District Court’s order.
5