United States v. Masud Al Safarini ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
ZAYD HASSAN ABD AL-LATIF Crim. Action No. 91-504-3
MASUD AL SAFARINI, (EGS)
Defendant.
MEMORANDUM OPINION
I. Introduction
Defendant Zayd Hassan Abd Al-Latif Safarini (“Mr. Safarini”
or “Defendant”) pled guilty to 95 counts related to the
attempted hijacking of Pan Am Flight 73 in Pakistan on September
5, 1986. See Plea Agreement, ECF No. 118 at 1. 1 He was sentenced
to three consecutive life sentences, plus 25 years. See
Judgment, ECF No. 125 at 4. Mr. Safarini seeks to set aside or
correct his sentence, pursuant to 28 U.S.C. § 2255. See
generally Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Ҥ 2255
Motion”), ECF No. 141.
1 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
1
Through an extensive set of post-conviction filings, Mr.
Safarini makes several arguments in favor of setting aside his
guilty plea. First, he asks the Court to vacate his conviction
for Use of a Firearm During a Crime of Violence, charged
pursuant to 18 U.S.C. § 924(c) (Count 95), arguing that the
crime of Attempt to Commit Air Piracy Resulting in Death,
charged pursuant to 49 U.S.C. App. § 1472(i), is not a “crime of
violence” based upon the Supreme Court’s decisions in Johnson v.
United States, 135 S. Ct. 2551, 2560 (2015), and United States
v. Davis, 139 S. Ct. 2319, 2321 (2019)(hereinafter, referred to
as the Johnson motion). See § 2255 Motion, ECF No. 141 at 2.
Second, he asks the Court to vacate his conviction for Attempt
to Commit Air Piracy Resulting in Death, charged pursuant to
18 U.S.C. App. § 1472(i) (Count 8), arguing that the Court
lacked jurisdiction over the attempted air piracy charge because
the aircraft was not in flight at the time that he committed the
crimes. See Motion to Dismiss Counts of the Indictment (“Def.’s
Suppl.”), ECF No. 145 at 8-9. Third, Mr. Safarini claims that
the Court lacked jurisdiction to sentence him on the counts
involving Murder of a United States National Outside the United
States, charged pursuant to 18 U.S.C. § 2331(a)(1) (Counts 3 and
4), because that statute purportedly was not in effect at the
time he committed the crime. See id. at 10. Fourth, he claims
that his plea agreement is void for several reasons, including
2
the violation of his due process rights and Rule 11, as well as
ineffective assistance of counsel. See Suppl. to Mot. to Dismiss
(“Def.’s Fourth Suppl.”), ECF No. 170 at 11-14.
In support of his ability to bring the § 2255 challenges,
Mr. Safarini makes a set of procedural arguments. First, he
argues that his waiver of the right to raise a collateral attack
in his plea agreement is unenforceable because there was no
jurisdiction for the charge of Attempt to Commit Air Piracy. See
id. at 14-15. Second, he argues that his procedural default–
failure to challenge his guilty plea on appeal on grounds of
knowingness and voluntariness should be excused because his
“severe depression” establishes “cause.” Id. at 15-17. Third, he
requests that the Court apply the doctrine of equitable tolling
and excuse the late filing of his § 2255 motion. See id. at 4-5.
Fourth, he suggests that if the Court determines that relief is
not available to him pursuant to § 2255 due to “procedural
reasons,” such as untimeliness or procedural default, he should
be permitted to seek the same relief pursuant to a petition for
a writ of coram nobis. Id. at 17-18.
Pending before the Court are: (1) Def.’s § 2255 Motion, see
ECF No. 141; (2) Def.’s Suppl., ECF No. 145; (3) pro se Motion
to Clarify and Narrow the Issue Before this Court and Move for
Expedited Decision/Emergency Petition Immediate Liberty Interest
(“Def.’s Second Suppl.”), see ECF No. 168; (4) pro se Letter for
3
Leave to Amend a Supplemental Reply to the Omnibus Sur-Reply of
the United States Without Amending the Pleadings But in Support
of the Original Filings Now Showing that With Support of the
Supreme Court Decisions the District Court Lacked Subject Matter
Jurisdiction and Personal Jurisdiction of the Petitioner and as
a Result the Plea Agreement Should be Vacated and Judgment Set
Aside and Manifest of Injustice be Corrected (“Def.’s Third
Suppl.”), which the Court construes as a motion, see ECF No.
169; and (5) Def.’s Fourth Suppl., ECF No. 170. Upon
consideration of the motions, responses, and the replies
thereto, the applicable law and regulations, the entire record
and the materials cited therein, the Court DENIES all five
motions.
II. Factual and Procedural Background
A. Factual Background
On September 5, 1986, Mr. Safarini, along with a group of
co-conspirators, attempted to hijack Pan American Flight 73, en
route from Karachi, Pakistan, to Frankfurt, Germany with
approximately 379 passengers and 78 U.S. Citizens on board.
United States v. Safarini, 257 F. Supp. 2d 191, 193 (D.D.C.
2003). Four men, including Mr. Safarini, seized control of the
aircraft while it was on the tarmac boarding passengers. Id. The
pilot, co-pilot and engineer escaped while the hijackers were
taking control of the aircraft, thereby grounding the plane. Id.4
After having seized control, Mr. Safarini instructed flight
attendants to procure the passports of those aboard the plane,
specifically to identify American citizens. Id. He then demanded
that a cockpit crew be provided to fly the plane to Cyprus and
threatened to kill passengers one by one to coerce authorities.
Id. To emphasize the seriousness of his request, he then held a
passenger, Rajesh N. Kumar, a United States national, at
gunpoint, shot him in the head, and threw his body from the
aircraft onto the tarmac. Id. Following Mr. Kumar’s murder,
radio communications were established between the plane and the
control tower, and Mr. Safarini began negotiations on behalf of
the hijackers with Pakistani authorities. Id.Later that day, when the auxiliary power unit supplying
power to the plane failed, the hijackers herded the passengers
and crew members into the center of the aircraft. Id. Mr.
Safarini, alongside his co-conspirators, then opened fire on the
aircraft’s passengers with assault rifles and pistols, and
detonated hand grenades into the crowd. Id. Nineteen passengers
were killed during the assault, including a second American
citizen, Surendra Patel. Id. More than one hundred other
passengers were seriously injured. Id.5
B. Procedural Background
1. Original Conviction
Mr. Safarini was tried jointly with his four co-defendants
in Pakistan in 1987 for charges arising from the events
described above. Safarini, 257 F. Supp. 2d at 194. Each
defendant was convicted and sentenced to death, though each
sentence was subsequently commuted to a life sentence. Id. Mr.
Safarini, however, was released on September 27, 2001, after
being imprisoned for approximately 15 years; and the Federal
Bureau of Investigation (“FBI”) subsequently captured him as he
was traveling to Jordan. 2
On August 29, 1991, a 126-count indictment against Mr.
Safarini had been returned under seal by a grand jury in the
United States District Court for the District of Columbia. See
generally Indictment, ECF No. 1. On August 28, 2002, following
Mr. Safarini’s capture by the FBI, a grand jury returned a
superseding indictment charging Mr. Safarini and his four co-
defendants with ninety-five federal offenses. See generally,
Superseding Indictment, ECF No. 26. On December 16, 2003, Mr.
Safarini pled guilty to all ninety-five charges pursuant to a
plea agreement. See Plea Agreement, ECF No. 118 ¶ 1. He was
2 In 2008, the Pakistani authorities released the remaining four
defendants from custody and they are currently on the FBI’s Most
Wanted Terrorists List. See Gov’t’s Omnibus Opp’n, ECF No. 151
at 2.
6
represented by Robert Tucker, Esquire, of the Office of the
Federal Public Defender for the District of Columbia, and
private counsel, David Bruck, Esquire. See id. at 1. The counts
of conviction included charges of murder, attempted murder,
attempted air piracy, hostage-taking, and conspiracy to commit
offenses against the United States. See id. ¶ 4.
Under the terms of the agreement, the government agreed
that it would not seek the death penalty, and the parties agreed
that the appropriate sentence was three consecutive life
sentences, plus 25 years. See Plea Agreement, ECF No. 118 ¶¶ 4,
12. In addition, pertinent to several of the claims Mr. Safarini
now raises, the plea agreement included the following provision:
Your client also voluntarily and knowingly
waives your client’s right to challenge the
sentence or manner in which it was determined,
or the plea itself, in any collateral attack,
including but not limited to a motion brought
under Title 28, United States Code, Section
2255. Your client understands that, under
legal ethical rules, you are not permitted to
advise your client to waive any claims of
ineffective assistance of counsel against you
and, therefore, this waiver does not include
any such claims of ineffective assistance of
counsel against you.
Plea Agreement, ECF No. 118 ¶ 20. This Court accepted the
parties’ Rule 11(c)(1)(C) plea agreement and sentenced Mr.
Safarini to the agreed-upon sentence. See Minute Entry, May 13,
2004. The Court entered the judgment on May 24, 2004. See
7
Judgment, ECF No. 125. Mr. Safarini did not note an appeal. See
generally Docket for Criminal Action No. 91-504-3.
2. Post-Conviction Proceedings
Approximately twelve years later, Mr. Safarini began to
collaterally attack his convictions. First, on or about June 18,
2016, he mailed to the U.S. Court of Appeals for the Federal
Circuit (“Federal Circuit”) two pro se motions: (1) a § 2255
motion; and (2) a Motion Under 28 U.S.C. § 2244 for Order
Authorizing the District Court to Consider Second or Successive
Application for Relief Under 28 U.S.C. § 2255 (“§ 2244 motion”),
see Petition, United States Court of Appeals for the District of
Columbia (“D.C. Circuit”) Docket #16-3094. In his § 2255 motion,
Mr. Safarini asserted that his conviction relating to the
§ 924(c) firearms offense (Count 95) must be vacated in light of
the Supreme Court’s decision in Johnson v. United States, 135 S.
Ct. 2551 (2015). See generally § 2255 Motion, ECF No. 141. On
August 5, 2016, the Federal Circuit transferred these motions to
the D.C. Circuit. See D.C. Circuit, Docket #16-3094.
On September 19, 2016, the government requested that the
D.C. Circuit transfer the two motions to this Court because the
§ 2255 motion was not “second or successive.” See Gov’t’s
Omnibus Opp’n, ECF No. 151 at 5. On October 17, 2016, Mr.
Safarini’s § 2255 and § 2244 motions were transferred to this
Court. See Notice, ECF No. 138. On February 14, 2017, Mr.
8
Safarini filed with this Court a copy of his § 2255 motion that
had been previously sent to the Federal Circuit. See § 2255
Motion, ECF No. 141.
While Mr. Safarini’s § 2255 and § 2244 motions were being
filed elsewhere and transferred to this Court, on August 29,
2016, he filed in this Court a pro se Motion to Dismiss
Conviction and Indictment Because District Court Lacked
Jurisdiction to Try this Case, see ECF No. 136. The Court
directed the government to file a response. See Minute Order,
January 29, 2017. On February 17, 2017, Mr. Safarini filed a
motion to withdraw his motion to dismiss, asserting that it did
not “represent the arguments and case law [he] wish[ed] to
argue” and indicating that he planned to file another motion at
a later date “to address the true essence of jurisdiction that
[he] wish[ed] to argue.” Mot. to Dismiss, ECF No. 142. On
February 27, 2017, the government filed its Opposition to Mr.
Safarini’s pro se motion, even though Mr. Safarini had moved to
withdraw that motion. See Resp. to Mot., ECF No. 144.
On February 28, 2017, Mr. Safarini filed a revised pro se
Motion to Dismiss Counts of the Indictment Under Titles 18
U.S.C. §§ 2331 and 844(i), Titles 49 U.S.C. App. § 1472 and 49
U.S.C. § 46502 and Void Plea Agreement for Lack of Jurisdiction
(“Def.’s Suppl.”), see ECF No. 145. The Court subsequently
granted Mr. Safarini’s motion to withdraw his initial pro se
9
Motion to Dismiss. See Minute Order, April 12, 2017. The Court
further ordered the government to respond to Mr. Safarini’s
§ 2255 motion and to his revised February 28, 2017, motion to
dismiss. See id.
On September 12, 2017, the government filed its Omnibus
Opposition to Mr. Safarini’s pro se motions. See Gov’t’s Omnibus
Opp’n, ECF No. 151. The Court subsequently appointed counsel,
Jerry Ray Smith, Esquire, to represent him. See Minute Order,
September 21, 2017. On May 21, 2018, Mr. Safarini, through
counsel, filed a Reply to the government’s Omnibus Opposition.
See Reply, ECF No. 159. On September 12, 2018, the government
filed its Surreply. See ECF No. 162.
On September 21, 2018, Mr. Safarini’s counsel filed a
Motion to Stay Post-Conviction Proceedings, pending the receipt
of certain medical records, see ECF No. 163; which the Court
granted, see Minute Order, October 3, 2018. On February 11,
2020, Mr. Safarini’s counsel filed a Motion to Lift Stay and Set
Deadlines for Filing Supplement to Post-Conviction Pleading, see
ECF No. 164. On April 13, 2020, Mr. Safarini’s counsel filed a
Motion for Leave to Expand the Record Under Seal, with
attachments, and an accompanying Motion for Leave to File Motion
Under Seal, see ECF No. 166.
On April 21, 2020, Mr. Safarini filed pro se: (1) Def.’s
Second Suppl., see ECF No. 168; and (2) Def.’s Third Suppl., see
10
ECF No. 169. On May 12, 2020, Mr. Safarini’s counsel filed a
supplement to Mr. Safarini’s Motion to Dismiss, see Def.’s
Fourth Suppl., ECF No. 170. 3 The government opposed all three
filings in an omnibus response. See United States’ Opp’n to
Def.’s Suppl. and Other Filings (“Gov’t’s Second Opp’n”), ECF
No. 172. Mr. Safarini’s counsel filed a reply on September 2,
2020. See Reply (“Second Reply”), ECF No. 173. The motions are
ripe and ready for adjudication. 4
3 As the government points out, the jurisdictional claims raised
in the defendant’s motion to dismiss, which are challenges to
the validity of his underlying convictions, are properly raised
pursuant to § 2255. Therefore, the defendant’s motion to dismiss
is construed by the Court as an amendment to his previously
filed § 2255 motion because of the nature of the claims the
defendant raises and the relief he seeks. See, e.g., Ching v.
United States, 298 F.3d 174, 177 (2d Cir. 2002) (“[I]n general,
when a § 2255 motion is filed before adjudication of an initial
§ 2255 motion is complete, the district court should construe
the second § 2255 motion as a motion to amend the pending § 2255
motion); Williams v. Gonzalez, 567 F. Supp. 2d 148, 149 (D.D.C.
2008) (court “not bound by a pro se litigant’s characterization
of his course of action. Rather a court must determine the
proper characterization of a filing by the nature of the relief
sought.”); United States v. Palmer, 296 F.3d 1135, 1145 (D.C.
Cir. 2002) (pro se pleadings should be construed based upon the
nature of the relief sought, not the caption the defendant has
attached to his pleading).
4 Although transferred to this Court, the Court does not address
Mr. Safarini’s § 2244 motion since his § 2255 motion is not
“second or successive.” See Notice, ECF No. 138.
11
III. Standards of Review
A. § 2255 Motion
Under 28 U.S.C. § 2255, a defendant may move the sentencing
court to vacate, set aside, or correct a sentence if the
defendant believes that the sentence was imposed “in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C. § 2255.
The relief envisaged by § 2255 “does not encompass all claimed
errors in conviction and sentencing.” United States v.
Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 60 L. Ed. 2d 805(1979). “Because of the premium placed on the finality of
judgments, there are limited circumstances under which a court
should grant a [§] 2255 motion.” Bedewi v. United States, 583 F.
Supp. 2d 72, 76 (D.D.C. 2008) (internal quotation marks
omitted).
A defendant bears the burden of demonstrating that he is
entitled to relief under § 2255. See, e.g., United States v.
Bell, 65 F. Supp. 3d 229, 231 (D.D.C. 2014). To obtain
collateral relief under § 2255, it is “well-settled” that “a
prisoner must clear a significantly higher hurdle than would
exist on direct appeal.” United States v. Frady, 456 U.S. 152,
166, 102 S. Ct. 1584 (1982); see also United States v. Pollard,
12
959 F.2d 1011, 1020 (D.C. Cir. 1992) (“[I]n a § 2255 collateral
challenge, [a defendant], in order to gain relief under any
claim, is obliged to show a good deal more than would be
sufficient on a direct appeal from his sentence.”). “Society’s
interest in bringing criminal appeals to an end is the reason
for the high standard for relief in a collateral proceeding.”
Pollard, 959 F.2d at 1029.
For claims other than ineffective assistance of counsel, a
defendant’s failure to raise an available claim on direct appeal
amounts to procedural default, and bars him from raising the
claim in a subsequent collateral attack, unless he shows cause
for his prior failure to raise the claim and prejudice because
of it. See Bousley v. United States, 523 U.S. 614, 622, 118 S.
Ct. 1604 (1998); United States v. Pettigrew, 346 F.3d 1139, 1144
(D.C. Cir. 2003); Brodie v. United States, 626 F. Supp. 2d 120,
123 (D.D.C. 2009). To show cause, a defendant must establish
“some objective factor external to the defense [that] impeded
counsel’s efforts to raise the claim,” such as government
interference or that the factual or legal basis for the claim
was not reasonably available. McCleskey v. Zant, 499 U.S. 467,
493-94, 111 S. Ct. 1454 (1991) (internal quotation marks
omitted). In addition, the defendant must show “‘actual
prejudice’ resulting from the errors of which he complains.”
Frady, 456 U.S. at 168.
13
B. Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are governed by
the standard set forth in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984)). To succeed on an ineffective-
assistance claim, a defendant must show both deficient
performance by his attorney and prejudice. Strickland, 466 U.S.
at 687. Strickland requires a party claiming ineffective
assistance of trial counsel to show that: (1) “counsel’s
representation fell below an objective standard of
reasonableness ... [measured] under prevailing professional
norms,” (the performance prong); and (2) the “deficiencies in
counsel’s performance...[were] prejudicial to the defense” (the
prejudice prong). Id. at 668, 687-88, 692. To establish
deficient performance, the moving party must show “specific
errors by trial counsel.” United States v. Cronic, 466 U.S. 648,
666, 104 S. Ct. 2039 (1984). To establish prejudice, the moving
party must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. “Judicial scrutiny of
counsel’s performance must be highly deferential,” and defendant
must overcome “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Id. at 689.
14
C. Timeliness of Ineffective Assistance of Counsel Claims
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) statute of limitations applies to the filing of § 2255
claims. Holland v. Fla., 560 U.S. 631, 130 S. Ct. 2549, 2552
(2010). Absent a narrow set of circumstances, a defendant must
file a § 2255 motion within one year of the date on which his
conviction becomes final. 5 See Dodd v. United States, 454 U.S.
353, 357 (2005) (recognizing that “[i]n most cases, the
operative date from which the limitation period is measured will
be . . . the date on which the judgment of conviction becomes
final.”). That date is measured by “the conclusion of direct
review or the expiration of the time for seeking such review.”
United States v. Shelton, 539 F. Supp. 2d 259, 266-67 (D.D.C.
2008).
5 The one-year limitation period runs from the latest of:
(1) the date on which the judgment of conviction becomes
final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the Constitution
or laws of the United States is removed, if the movant was
prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the exercise
of due diligence.
28 U.S.C. § 2255(f).
15
Claims filed beyond the one-year limitation are timely if
they relate back to the timely claims, meaning that they “arise
from the same core facts as the timely filed claims, and not
[if] the new claims depend upon events separate in ‘both time
and type’ from the originally raised episodes.” Mayle v. Felix,
545 U.S. 644, 645, 125 S. Ct. 2562 (2005) (internal quotation
marks omitted). The Federal Rules of Civil Procedure establish
that “[a]n amendment of a pleading relates back to the date of
the original pleading when . . . the claim . . . asserted in the
amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the
original pleading . . ..” Fed. R. Civ. P. 15(c)(2).
However, in certain cases, the AEDPA statute of limitations
is subject to equitable tolling. Holland, 560 U.S. at 649. To
warrant equitable tolling, a petitioner must show “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way” and prevented
timely filing. Id.IV. Analysis
Through his various post-conviction filings, Mr. Safarini
presents the following arguments to vacate his convictions.
First, he claims that the crime of Attempt to Commit Air Piracy
Resulting in Death, charged pursuant to 49 U.S.C. App. §
1472(i), is not a “crime of violence” based upon the Supreme
16
Court’s decisions in Johnson, 135 S. Ct. at 2560, and Davis, 139
S. Ct. at 2321. See § 2255 Motion, ECF No. 141 at 2. Second, he
argues that the Court lacked jurisdiction over the attempted air
piracy charge because the aircraft was not in flight at the time
he committed the crimes. See Def.’s Suppl., ECF No. 145 at 8-9.
Third, Mr. Safarini argues that the Court lacked jurisdiction to
sentence him on the counts involving Murder of a United States
National Outside the United States, charged pursuant to 18
U.S.C. § 2331(a)(1) (Counts 3 and 4), because that statute
purportedly was not in effect when he committed the crime. See
id. at 10. Fourth, he brings a set of claims derivative of his
air piracy jurisdiction argument, asserting that his plea
agreement violated his due process rights and Rule 11 since “he
was unaware that there could be no jurisdiction for the
attempted-aircraft-piracy-resulting-in-death charge he was
admitting and that he was therefore actually innocent of that
charge,” and that he consequently received ineffective
assistance of counsel. See Def.’s Fourth Suppl., ECF No. 170 at
11-14. Finally, he asserts that his counsel was also ineffective
because “it was objectively unreasonable of his counsel not to
raise the issue of his competency prior to allowing him to enter
into the plea agreement.” Def.’s Reply, ECF No. 159 at 7.
On the merits, the government responds that: (1) the
decisions in Davis and Johnson do not invalidate Mr. Safarini’s
17
§ 924(c) conviction, see Gov’t’s Second Opp’n, ECF No. 172 at 9-
12; (2) the Court did not lack jurisdiction over the attempted
air piracy conviction because the aircraft was not required to
be in flight, see id. at 7-8; (3) Mr. Safarini’s “contention
that the murder and attempted murder charges were based upon a
statute that was not in effect on September 5, 1986, is simply
wrong,” see Gov’t’s Omnibus Opp’n, ECF No. 151 at 27; (4) his
Rule 11 and due process claims “are attempts by the defendant to
repackage his previous claim that the Court lacked subject
matter jurisdiction over Count 8, the charge of Attempt to
Commit Air Piracy,” Gov’t’s Second Opp’n, ECF No. 172 at 15; and
(5) his ineffective assistance of counsel claim fails because
Mr. Safarini’s attorneys “did not have ‘reasonable cause’ to
question his competency, nor were they constitutionally
ineffective for failing to raise such an issue,” Gov’t’s
Surreply, ECF No. 162 at 13.
The government also presents procedural challenges to Mr.
Safarini’s claims, arguing that he is precluded from
collaterally attacking his conviction and sentence on any
grounds except for ineffective assistance of counsel. See
Gov’t’s Omnibus Opp’n, ECF No. 151 at 7. The government also
argues that Mr. Safarini’s plea was knowing and voluntary. Id.
Finally, the government argues that Mr. Safarini’s § 2255 motion
is untimely and that no “extraordinary circumstances” exist to
18
justify equitable tolling. See Gov’t’s Surreply, ECF No. 162 at
23.
In support of his ability to bring his § 2255 challenges,
Mr. Safarini counters that his waiver of the right to raise a
collateral attack in his plea agreement is unenforceable because
there was no jurisdiction for the charge of Attempt to Commit
Air Piracy. See Def.’s Fourth Suppl. at 14-15. Second, he argues
that his procedural default–his failure to challenge his guilty
plea on appeal on grounds of knowingness and voluntariness–
should be excused because his “severe depression” establishes
“cause.” Id. at 15-17. Third, he requests that the Court apply
the doctrine of equitable tolling and excuse the late filing of
his § 2255 motion, also on the basis of his state of mind. See
Def.’s Fourth Suppl. at 4-5.
Mr. Safarini further suggests that if the Court determines
that relief is not available to him pursuant to § 2255 due to
procedural reasons such as untimeliness or procedural default,
he should be permitted to seek the same relief pursuant to a
petition for a writ of coram nobis. Id. at 17-18. The government
counters that the writ of coram nobis is not available to Mr.
Safarini because he is in custody. See Gov’t’s Second Opp’n, ECF
No. 172 at 20.
Before addressing the substantive merits of a defendant’s
claims, the Court must determine whether those claims are
19
timely. United States v. Cicero, 214 F.3d 199, 202 (D.C. Cir.
2000). Here, the Court must first consider whether Mr. Safarini
has the right to bring these claims at all, since he waived the
right to collateral attacks in his plea agreement, except for
any ineffective assistance of counsel claims. See Plea
Agreement, ECF No. 118 ¶ 20. Thus, the Court first considers
whether Mr. Safarini can bring his § 2255 claims in light of his
plea agreement, and then considers the issue of timeliness,
before reaching the merits of the argument.
A. Mr. Safarini’s Claims, Other Than Ineffective
Assistance of Counsel, Are Barred by His Plea
Agreement
In his Motion to Dismiss, Mr. Safarini seeks to void his
plea agreement on the grounds that it “was not knowingly and
intelligently made” since he was unaware that the Court lacked
jurisdiction. See Def.’s Suppl., ECF No. 145 at 11. His reply
adds a second ground, that he “did not understand or appreciate
what he was doing when he pled guilty as a general matter”
because he was depressed, “not in his right mind,” and received
ineffective assistance of counsel. See Def.’s Reply, ECF No. 59
at 5-7.
The government responds that Mr. Safarini’s claim, “while
labeled a challenge to the Court’s jurisdiction, is–at best--a
challenge to the government’s proof with respect to the elements
of that crime.” Gov’t’s Omnibus Opp’n, ECF No. 151 at 21. The
20
government also asserts that the express terms of Mr. Safarini’s
plea agreement with the government, into which he entered
knowingly and voluntarily, preclude him from challenging his
convictions on collateral attack on any grounds except
ineffective assistance of counsel. See id. at 17-21. The Court
addresses each argument in turn.
1. Mr. Safarini’s Attempted Air Piracy Argument
Does Not Raise Any Jurisdictional Issues
Mr. Safarini raises jurisdictional issues over his air
piracy charge in myriad ways, ranging from a direct argument
that his plea agreement is void because his plea was not knowing
and voluntary since the Court lacked subject matter, see Def.’s
Suppl., ECF No. 145 at 11-12; to derivative allegations that:
(1) lack of jurisdiction meant that his waiver of a right to
mount collateral attacks is unenforceable, see Def.’s Fourth
Suppl., ECF No. 170 at 14-15; (2) Rule 11 and due process were
consequently violated through accepting his plea, see id. at 11-
12; and (3) that his counsel was ineffective for not challenging
the lack of jurisdiction, see id. at 13-14. Although presented
in different ways, these arguments are all derivative of whether
the Court had jurisdiction. Consequently, the Court first
addresses whether Mr. Safarini has brought a jurisdictional
challenge that could render his plea not knowing or voluntary
and surpass the explicit waiver in his plea agreement.
21
“It is well settled that a voluntary and intelligent
plea of guilty made by an accused person, who has been advised
by competent counsel, may not be collaterally
attacked.” Bousley, 523 U.S. at 621 (internal citation
omitted). A “voluntary plea of guilty waives all rights and
defenses, known or unknown, present or future,” except those
relating to the Court’s jurisdiction. United States v.
Fitzgerald, 466 F.2d 377, 379 (D.C. Cir. 1972); see also Brady
v. United States, 397 U.S. 742, 756-57 (1970); McMann v.
Richardson, 397 U.S. 759, 768-74 (1970); Parker v. North
Carolina, 397 U.S. 790, 794-98 (1970); United States v. Delgado-
Garcia, 374 F.3d 1337, 1341 (D.C. Cir. 2004); United States v.
Drew, 200 F.3d 871, 876 (D.C. Cir. 2000); Coleman v. Burnett,
477 F.2d 1187, 1195 (D.C. Cir. 1973). Where the unambiguous
terms of the plea agreement prevent collateral attacks, the
defendant cannot challenge his plea or sentence on collateral
review via a § 2255 motion. See, e.g., United States v. Bertram,
209 F. Supp.3d 243 (D.D.C. 2016) (in pleading guilty, defendant
waived right to file § 2255 motion except on the basis of newly
discovered evidence or ineffective assistance of counsel; court
held that defendant’s claims of selective prosecution and actual
innocence were barred by express terms of plea agreement); cf.
United States v. Guillen, 561 F.3d 527, 530 (D.C. Cir. 2009)
22
(waivers of right to appeal in plea agreements are generally
enforceable).
There are two recognized exceptions to the rule that by
pleading guilty, the defendant waives his right to challenge his
convictions. United States v. Miranda, 780 F.3d 1185, 1188 (D.C.
Cir. 2015). First, a challenge to the district court's subject-
matter jurisdiction—to the court's power to hear a given case—
can never be waived or forfeited. Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006); United States v. Cotton, 535 U.S. 625, 630
(2002). Second, certain constitutional challenges asserting a
“right not to be haled into court at all” cannot be waived
through a guilty plea. Blackledge v. Perry, 417 U.S. 21, 31
(1974); Menna v. New York, 423 U.S. 61, 62-63 n.2 (1975) (“[A]
plea of guilty to a charge does not waive a claim that judged on
its face-the charge is one which the State may not
constitutionally prosecute.”).
Here, Mr. Safarini makes two relevant arguments. First, he
argues that the Court lacked jurisdiction to sentence him on the
counts involving Murder of a United States National Outside the
United States, charged pursuant to 18 U.S.C. § 2331(a)(1)
(Counts 3 and 4), because that statute purportedly was not in
effect when he committed the crime. See Def.’s Suppl., ECF No.
145 at 10. Since the government addresses Mr. Safarini’s
argument about the murder charges only on the merits, the Court
23
considers the government to have conceded that the argument
passes the jurisdictional challenge test.
Second, Mr. Safarini contends that the Court lacked
jurisdiction over the attempted air piracy charge because the
aircraft was not in flight when he committed the hijacking. See
Def.’s Suppl., ECF No. 145 at 8-10. The government responds that
Mr. Safarini’s argument, “while labeled a challenge to the
Court’s jurisdiction, is–at best--a challenge to the
government’s proof with respect to the elements of that crime.”
Gov’t’s Omnibus Opp’n, ECF No. 151 at 20. The Court agrees.
Persuasive authority holds that to sustain a challenge to
the district court’s jurisdiction, a defendant who has pleaded
guilty must establish that the face of the indictment discloses
that the count to which he pleaded guilty failed to charge a
federal offense. Hayle v. United States, 815 F.2d 879, 881 (2d
Cir. 1987); United States v. Santelises, 476 F.2d 787, 788 (2d
Cir. 1973) (coram nobis attack on guilty plea based on alleged
failure of indictment to allege violations of federal law must
be rejected “‘unless [the indictment] is so defective that it
does not, by any reasonable construction, charge an offense for
which the defendant is convicted’”) (quoting United States v.
Trollinger, 415 F.2d 527, 528 (5th Cir. 1969))). The
“requirement that the alleged jurisdictional defect be apparent
from the face of the indictment reflects the line between issues
24
that go to the court’s power to entertain the prosecution and
those that go merely to the government’s ability to prove its
case.” Hayle, 815 F.2d at 882. If the indictment “alleges all of
the statutory elements of a federal offense and the defendant’s
contention is that in fact certain of those elements are
lacking, the challenge goes to the merits of the prosecution,
not to the jurisdiction of the court to entertain the case or to
punish the defendant if all of the alleged elements are proven.”
Id.Mr. Safarini’s argument regarding the jurisdictional nature
of the air piracy claim follows a somewhat convoluted path: he
claims that although he was charged with, and pled guilty to,
attempted aircraft piracy, his “conduct actually constituted a
completed aircraft piracy” since “Mr. Safarini and his
confederates actually seized control of the aircraft.” Def.’s
Fourth Suppl., ECF No. 170 at 7-8. In 1986, for a charge of
completed aircraft piracy to be within the United States’
special aircraft jurisdiction, the aircraft actually had to be
“in flight” at the time that the conduct occurred. 49 U.S.C.
App. § 1301(38) (1982). In contrast, for attempted aircraft
piracy to be within the United States’ special jurisdiction, it
expressly did not have to be in flight; instead, it had merely
to “have been within the special aircraft jurisdiction of the
United States had the offense of aircraft piracy been
25
completed.” 49 U.S.C. App § 1472 (i)(3) (1982). Mr. Safarini
argues that since Pan Am Flight 73 was not “in flight,” and
since he had completed the offense of aircraft piracy, it cannot
be said that the attempted aircraft piracy that he pled guilty
to “would have been within the special aircraft jurisdiction of
the United States had the offense of aircraft piracy been
completed.” Def.’s Fourth Suppl., ECF No. 170 at 6-7 (citing 49
U.S.C. App § 1472 (i)(3) (1982)).
The Court concludes that this argument “goes to the merits
of the prosecution,” rather than the Court’s ability to hear the
issue. Hayle, 815 F.2d at 882. Although Mr. Safarini’s filings
are couched in jurisdictional terms, his underlying contention
turns on the element of “seizure or exercise of control.” See 49
U.S.C. App. § 1472(i)(2) (1982) (defining “aircraft piracy” as
“any seizure or exercise of control, by force or violence or
threat of force or violence, or by any other form of
intimidation, and with wrongful intent, of an aircraft within
the special aircraft jurisdiction of the United States”). His
assertions regarding the Court’s jurisdiction notwithstanding,
Mr. Safarini’s argument is whether “[he] and his confederates
actually seized control of the aircraft.” See Def.’s Fourth
Suppl., ECF No. 170 at 7. Mr. Safarini himself asserts that
having seized control and completed the offense, ““[i]n Flight”
as an element was required required [sic] in order to be charged
26
and convicted.” Def.’s Suppl., ECF No. 145 at 11-12 (emphasis
added).
Moreover, Mr. Safarini’s argument amounts to an assertion
that he can be charged with neither aircraft piracy, since the
plane was not in flight, nor with attempted aircraft piracy
because, having completed the offense by seizing control on the
ground, “the aircraft would [not] have been within the special
aircraft jurisdiction of the United States had the offense of
aircraft piracy been completed.” 49 U.S.C. App § 1472 (i)(3)
(1982) (emphasis added). Mr. Safarini seeks to have it both
ways-he argues that his conduct “clearly fits the definition of
the type of conduct that constitutes the completed offense of
aircraft piracy,” and simultaneously asserts that had he
completed the offense, it would have fallen outside the special
aircraft jurisdiction of the United States. See Def.’s Fourth
Suppl., ECF No. 170 at 7-8.
Since Mr. Safarini’s argument is whether his actions
satisfy the elements of the offense, specifically as related to
seizure, he has not brought a jurisdictional challenge.
Accordingly, his challenge does not render his plea not knowing
or voluntary thereby rendering the waiver in his plea agreement
unenforceable. See Fitzgerald, 466 F.2d 377 at 379.
27
2. Mr. Safarini’s Argument That His Plea Agreement
Was Not Knowing And Voluntary is Barred by
Procedural Default
Mr. Safarini also contends that his plea was not knowing
and voluntary because he “did not understand or appreciate what
he was doing when he pled guilty,” since he “was not in his
right mind” and was “so depressed that he was willing to agree
to anything without an understanding of what he was agreeing to
and without any regard for what might be best for him.” Def.’s
Second Reply, ECF No. 173 at 5-6. While Mr. Safarini does not
dispute that he procedurally defaulted—i.e., failed to timely
challenge his guilty plea on appeal on grounds of knowing and
voluntariness—he does assert that his default should be excused
because his “severe depression” establishes “cause.” 6 See Def.’s
6Mr. Safarini does not make a case for why his jurisdictional
argument about the murder of a United States national should
surpass the procedural default bar. Moreover, as the government
points out, 18 U.S.C. § 2331 was enacted on August 27, 1986, as
part of the Omnibus Diplomatic Security and Antiterrorism Act of
1986, just 9 days before the defendant and his co-defendants
attempted to hijack Pan Am Flight 73. See 18 U.S.C. § 2331(c);
Pub. L. 99-399, Title XII, § 1202(a), Aug. 27, 1986, 100 Stat.
896, § 2331, amended Pub. L. 102-572, Title X, § 1003(a)(1),
Oct. 29, 1992, 106 Stat. 4521. The date cited by Mr. Safarini is
that of an amendment which does not impact his case is any way.
Furthermore, the legislation was specifically intended to
address extraterritorial attacks on U.S. nationals by
terrorists. See 132 Cong. Rec. H5944-05, 1986 WL 783573 (99th
Cong. 2d Sess., August 12, 1986); H.R. Conf. Rep. 99-783, 99th
Cong., 2d Sess. 88, reprinted in 1986 U.S. Code Cong. & Admin.
News at 1960-61 (August 12, 1986). The argument thus fails both
procedurally and on the merits.
28
Fourth Suppl., ECF No. 170 at 15-17. He also asserts that he has
established “prejudice” because “he will be saddled forever with
a plea that does not comport with due process and the Sixth
Amendment, that was taken in violation of Rule 11, and that
resulted in him being convicted of an offense he was innocent
of.” Id. The government does not specifically respond to the
procedural default defense, arguing on the merits that it is
“indisputable that the defendant entered into his guilty plea
both knowingly and intelligently.” Gov’t’s Surreply, ECF No. 162
at 8. The Court finds it unnecessary to reach the merits of Mr.
Safarini’s argument because it is barred by procedural default.
Even where a defendant waives the right to appeal or
collaterally attack his conviction as part of his plea
agreement, he does not waive the right to challenge that waiver
itself on the grounds that it was not knowing and voluntary.
Garza v. Idaho, 139 S. Ct. 738, 745 (2019); see also Guillen 561
F.3d at 529 (a waiver provision is enforceable if the decision
to waive that right is “knowing, intelligent, and voluntary”).
For a plea to be voluntary under the Constitution, a defendant
must receive “``real notice of the true nature of the charge
against him.’” United States v. Yong Ho Ahn, 231 F.3d 26, 33
(D.C. Cir. 2000) (quoting United States v. Dewalt, 92 F.3d 1209,
1211 (D.C. Cir. 1996) (internal citations omitted)). However,
where a defendant raises a non-ineffective-assistance-of-counsel
29
claim for the first time in a § 2255 motion, he must either: (1)
show cause for not raising the claim on appeal and prejudice
resulting from not being able to raise that claim now (“cause
and prejudice”); or (2) that he is “actually innocent.” Bousley,
523 U.S. at 623.
The “prejudice” Mr. Safarini claims to have suffered is
that “he will be saddled forever with a plea that does not
comport with due process and the Sixth Amendment, that was taken
in violation of Rule 11, and that resulted in him being
convicted of an offense he was innocent of.” Def.’s Fourth
Suppl., ECF No 170. at 15-17. The Court has already established
that these challenges, derivative of Mr. Safarini’s jurisdiction
argument, go to the merits of the prosecution rather than the
Court’s ability to hear the case. See supra Section IV.A.1. It
now turns to the merits of the jurisdiction argument, which
raises the question of whether Mr. Safarini was “actually
innocent of one of the charges he pled guilty to.” Def.’s Fourth
Suppl., ECF No. 170 at 17.
As stated above, Mr. Safarini asserts that he can be
charged with neither aircraft piracy, since the plane was not in
flight, nor with attempted aircraft piracy because, having
seized control and completed the offense on the ground, “the
aircraft would [not] have been within the special aircraft
jurisdiction of the United States had the offense of aircraft
30
piracy been completed.” Def.’s Fourth Suppl., ECF No. 170 at 6-7
(citing 49 U.S.C. App § 1472 (i)(3) (1982)). The government
responds that Mr. Safarini’s “conduct was contemplated and
intended by Congress to be punished under 49 U.S.C. App. § 1472
(i), as an attempted aircraft piracy, and the proof of facts, as
proffered by the government and pled to and acknowledged by the
defendant, fully supports his conviction of attempted aircraft
piracy.” Gov’t’s Omnibus Opp’n, ECF No. 151 at 25. The Court
agrees.
Although Mr. Safarini and his fellow hijackers seized
control of the aircraft, as required by the definition of
aircraft piracy, see 49 U.S.C. App. § 1472(i)(2) (1982); seizing
control was not enough to complete the attempt of aircraft
piracy. As Mr. Safarini himself concedes, aircraft piracy also
required that “the aircraft actually had to be “in flight” at
the time that the conduct occurred.” Def.’s Fourth Suppl., ECF
No. 170 at 6. Therefore, as the government asserts, although Mr.
Safarini and his co-defendants “seized control,” their conduct
constituted an “attempt[] to hijack the plane and to force the
cockpit crew to fly to Israel”; “[t]here was no proof that the
defendants committed a completed air piracy because the plane
never left the tarmac.” Gov’t’s Second Opp’n, ECF No. 172 at 7-
8. In contrast, as Mr. Safarini “pointedly” acknowledges, an
aircraft did not have to be in flight for conduct to be charged
31
as attempted aircraft piracy, see Def.’s Fourth Suppl., ECF No.
170 at 6; it merely had to “have been within the special
aircraft jurisdiction of the United States had the offense of
aircraft piracy been completed,” 49 U.S.C. App § 1472 (i)(3)
(1982).
In his pro se Motion to Clarify and Narrow the Issue Before
this Court and Move for Expedited Decision/Emergency Petition
Immediate Liberty Interest, Mr. Safarini relies on two cases not
cited in his previous pleadings to further his argument. See
Def.’s Second Suppl., ECF No. 168 at 2. However, these cases are
easily distinguished. In United States v. Lopez, 885 F.2d 1428,
1430 (9th Cir. 1989), one of the two defendants was convicted of
air piracy for commandeering a helicopter to assist in the
escape from prison of the other defendant. In United States v.
Mena, the defendant was convicted of air piracy after he
hijacked a seaplane en route from St. Thomas to Puerto Rico,
carrying a tin can that he claimed to be a “very sensitive
explosive device” and threatening to “blow up the aircraft” if
he was not flown to Cuba. 933 F.2d 19, 21-22 (1st Cir. 1991).
However, the holdings in Lopez and Mena both dealt with a
completed air piracy offense and therefore are irrelevant to the
defendant’s argument about the charge of Attempt to Commit Air
Piracy, and Mr. Safarini does not make a case for how they would
matter. The Court concludes that Mr. Safarini has not shown
32
prejudice or actual innocence to overcome the procedural default
bar for his argument that his plea was not knowing or voluntary. 7
See Bousley, 523 U.S. at 623.
Consequently, after accounting for the waiver of collateral
attacks in Mr. Safarini’s plea agreement, as well as procedural
default limitations, the only one of Mr. Safarini’s claims that
7
The Court also notes that the record shows both that Mr.
Safarini had extensive notice of his plea and that he understood
the charges against him. Mr. Safarini specifically acknowledged
to the Court and in the presence of his counsel that (1) he was
guilty of all 95 charges listed in the superseding indictment
and that he was pleading guilty because he was in fact guilty
(12/16/03 Tr. at 13, 16, 40); (2) he had had enough time to
consider his plea of guilty and did not need any more time
(12/16/03 Tr. at 13-14); (3) he understood the charges and
maximum penalties (12/16/03 Tr. at 18, 25); (4) he had reviewed
the elements of each of the 95 charges with his attorneys, that
he understood them and that he had had ample opportunity to
discuss the charges with his attorneys (12/16/03 Tr. at 14, 19-
20, 69); (5) he did not want the Court to repeat or review the
elements of the 95 charges again because there was “no reason”
(12/16/03 Tr. at 20); (6) he was waiving the right to pursue any
collateral attacks, except for ineffective assistance of counsel
(12/16/03 Tr. at 25, 44-45); (7) that the government’s factual
proffer, consisting of 27 paragraphs, was accurate (12/16/03 Tr.
49-69); (8) he had read and understood the terms of the plea
agreement before he signed it (12/16/03 Tr. at 15-16, 69); (9)
he was satisfied with the services of his attorneys (12/16/03
Tr. at 11, 14); (10) he had had the opportunity to have the plea
agreement translated into his native language, that he had
declined that offer and that he had been able to read and
understand the plea agreement as written in English (12/16/03
Tr. at 15, 46), (11) he was not entering into the plea agreement
as a result of any threats, coercion, duress or any other
improper influences (12/16/03 Tr. at 70); and, (12) that he had
fully understood the plea agreement and that he was knowingly
and voluntarily entering into the agreement of his own free will
(12/16/03 Tr. at 69-70).
33
he may bring is ineffective assistance of counsel. As a
preliminary matter, however, this claim must still be timely to
be considered on the merits.
B. Mr. Safarini’s Ineffective Assistance of Counsel Claim
Is Untimely
Mr. Safarini’s only claim that circumvents his voluntary
plea agreement waiver is that “it was objectively unreasonable
of his counsel not to raise the issue of his competency prior to
allowing him to enter into the plea agreement.” Def.’s Reply,
ECF No. 159 at 7. 8 The government argues that Mr. Safarini’s
claims should be dismissed as time-barred. See Gov’t’s Second
Opp’n, ECF No. 172 at 15; Gov’t’s Omnibus Opp’n, ECF No. 151 at
9. Mr. Safarini responds that although untimely, the Court
should apply the doctrine of equitable tolling and excuse the
late filing of his § 2255 motion. See Def.’s Fourth Suppl., ECF
No. 170 at 4-5; Def.’s Reply, ECF No. 159 at 9-10. The
government replies that the doctrine of equitable tolling is
inapplicable because Mr. Safarini’s explanation for his late
filing does not establish “extraordinary circumstances” that
made it “impossible” for him to file a timely § 2255 motion. See
Gov’t’s Surreply, ECF No. 162 at 22-25. The Court agrees.
8 The Court need not address Mr. Safarini’s ineffective
assistance of counsel argument based on lack of jurisdiction
over attempted air piracy, see Def.’s Fourth Suppl., ECF No. 170
at 13-14; because, as discussed supra, Mr. Safarini did not
present a jurisdictional issue.
34
Under § 2255(f), a defendant generally must file a § 2255
motion within one year of the date on which his conviction
becomes final. See Dodd, 454 U.S. at 357. A petitioner is
“entitled to equitable tolling” only if he shows “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” Holland, 560 U.S. at 649. “‘To count as sufficiently
‘extraordinary,’ ... the circumstances that caused a litigant’s
delay must have been beyond [his] control’; in other words, the
delay ‘cannot be a product of that litigant’s own
misunderstanding of the law or tactical mistakes in
litigation.’” Head v. Wilson, 792 F.3d 102, 107 (D.C. Cir. 2015)
(quoting Menominee Indian Tribe of Wis. v. United States,
764 F.3d 51, 58 (D.C. Cir. 2014)).
As the government concedes, see Gov’t’s Second Opp’n, ECF
No. 172 at 14; the expanded record does show that Mr. Safarini
was, at times, “depressed,” “sad,” “devastated,” and
“irritable,” see Exhibit, ECF No. 166-2 at 4-5, 2l, 30, 45; see
also id. at 32 (“Inmate reports feeling depressed and somewhat
anxious about his upcoming sentencing”); id. at 27 (“Inmate
reports feeling a bit relieved about having a status hearing
today. He hopes things would not be too bad for him.”). While
Mr. Safarini’s emotions are understandable given his crimes and
life sentence, they do not equate to legal incompetence. See
35
Edmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996) (“The
issue is not mental illness, but whether the defendant ‘has
sufficient present ability to consult with his attorney with a
reasonable degree of rational understanding – and whether he has
a rational as well as factual understanding of the proceedings
against him.’”) (Internal citation omitted).
Mr. Safarini fails to direct the Court to anything within
the materials that specifically establishes an “extraordinary”
circumstance that prevented timely filing. To the contrary, the
record is conflicted at best, showing also that Mr. Safarini was
“expressive and cooperative” and that “he was doing okay but
mildly depressed,” Exhibit, ECF No. 166-2 at 32. At another
time, he “reported doing relatively well,” id. at 39.
Consequently, the Court concludes that equitable tolling is
unwarranted, and Mr. Safarini’s § 2255 claim is untimely.
C. The Writ of Coram Nobis Is Not Available to Mr.
Safarini Because He is in Custody
Mr. Safarini argues that if the Court concludes that § 2255
is not available to him “for procedural reasons such as
procedural default or untimeliness,” he should be permitted to
bring his claims pursuant to a petition for a writ of coram
nobis. See Def.’s Fourth Suppl., ECF No. 170 at 17-18. The
government counters that Mr. Safarini cannot use this writ
because he is in custody. See Gov’t’s Second Opp’n, ECF No. 172
at 20. Mr. Safarini replies that “[j]ust because coram nobis
36
relief is available to people who are not in custody does not
mean that it is categorically unavailable to people who are . .
..” Def.’s Second Reply, ECF No. 173 at 6. The Court concludes
that Mr. Safarini is not entitled to the writ of coram nobis.
A petition for a writ of coram nobis is “an extraordinary
remedy” that allows criminal defendants to attack their
convictions after they are no longer in custody. United States
v. Morgan, 346 U.S. 502, 511 (1954); United States v. Faison,
956 F. Supp. 2d 267, 269 (D.D.C. 2013). “Through a writ of error
coram nobis, the federal judge who imposed a sentence has the
discretionary power to set aside an underlying conviction and
sentence which, for a valid reason, should never have been
entered.” Id. (quoting United States v. Hansen, 906 F. Supp.
688, 692 (D.D.C. 1995)). Coram nobis is used when “a more usual
remedy is not available because [petitioner] is not in custody
for the conviction he challenges,” and “thus cannot attack his
conviction under 28 U.S.C. § 2255.” Id.; see also United States
v. Williams, 630 F. Supp. 2d 28, 30 (D.D.C. 2009).
Mr. Safarini argues that “it is hard to see why, when
seeking coram nobis relief, a person who cannot use § 2255
because he is no longer in custody should be any different than
a person who cannot use it for some other reason—like the
running of the limitations period,” Def.’s Second Reply, ECF No.
173 at 7; but he does not present a single case where coram
37
nobis has been extended to someone in custody. While the case
Mr. Safarini cites, United States v. Morgan, 346 U.S. 502, 511
(1954), does theoretically support the proposition that
prisoners “have rights of collateral attack beyond the confines
of § 2255,” Def.’s Second Reply, ECF No. 173 at 7; it is an
implausible stretch to suggest that the Supreme Court’s use of
the word “prisoners” in reference to collateral attacks other
than § 2255 is enough to extend the use of coram nobis to those
presently in custody. The Court concludes that being in custody
forecloses Mr. Safarini’s attempt to seek coram nobis relief.
D. No Further Hearings Are Required to Deny Mr.
Safarini’s Claims
Mr. Safarini requests an evidentiary hearing on the issue
of whether his plea was knowing and voluntary given his mental
state. See Def.’s Reply, ECF No. 159 at 7-8. The government
responds that “[b]ecause this case can be decided on the record,
no hearing is necessary.” Gov’t’s Omnibus Opp’n, ECF No. 151 at
27. The Court agrees.
The Court must grant an evidentiary hearing on a § 2255
motion unless “the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255 (1994). The question is whether “it plainly
appears from the face of the motion and any annexed exhibits and
the prior proceedings in the case that the movant is not
entitled to relief in the district court.” United States v.
38
Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996) (quoting Rules
Governing § 2255 Proceedings, Rule 4, 28 U.S.C. foll. § 2255
(1994)). Moreover, “a district judge's decision not to hold an
evidentiary hearing before denying a § 2255 motion is generally
respected as a sound exercise of discretion” when, as here, “the
judge denying the § 2255 motion also presided over the trial in
which the petitioner claims to have been prejudiced.” Id. Since
the record conclusively establishes that Mr. Safarini is not
entitled to relief, no further hearing is needed.
V. Conclusion
For the foregoing reasons, (1) Defendant’s § 2255 Motion,
see ECF No. 141, is DENIED; (2) Defendant’s Suppl., see ECF No.
145, is DENIED; (3) Defendant’s Second Suppl., see ECF No. 168,
is DENIED; (4) Defendant’s Third Suppl., see ECF No. 169, is
DENIED; and (5) Defendant’s Fourth Suppl., see ECF No. 170, is
DENIED. An appropriate Order accompanies this Memorandum
Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
November 1, 2021
39