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El-Amin v. English

United States District Court, D. Kansas

March 11, 2019

SALEEM EL-AMIN, Petitioner,
v.
N.C. ENGLISH, Warden USP-Leavenworth Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE

         This matter is a petition for habeas corpus filed under 28 U.S.C. § 2254. Petitioner, an offender convicted in the District of Columbia, is incarcerated at the United States Penitentiary-Leavenworth (USPL).

         Background

         In September 2014, petitioner was convicted in the Superior Court of the District of Columbia of one count of armed robbery. Although petitioner also was charged with one count of assault with a dangerous weapon (ADW), the trial judge did not instruct the jury on that lesser-included charge. In November 2014, the trial court sentenced petitioner to a term of 120 months.

         Petitioner then filed an appeal in the District of Columbia Court of Appeals (DCCA). In January 2016, his appointed appellate counsel, Joseph Virgilio, moved to withdraw. Mr. Virgilio explained that after he filed an appellate brief on petitioner's behalf, petitioner filed three civil complaints against him alleging fraud and negligent misrepresentation due to his failure to argue that the trial judge's decision not to instruct the jury on the ADW charge violated petitioner's constitutional rights.

         After Mr. Virgilio withdrew, April Fearnley was appointed to represent petitioner. Ms. Fearnley filed a supplemental brief and a reply brief that alleged error in the failure to instruct.

         In May 2017, the DCCA affirmed petitioner's conviction. The DCCA addressed the failure to instruct as follows:

Like the trial judge, we do not perceive a basis in the evidence to support a rational finding that [petitioner] committed the charged ADW but not the charged armed robbery. There was no dispute at trial over the elements that differentiate armed robbery from ADW. Whoever stabbed the complainant did so in the course of also robbing her of her purse; the only question at trial was whether it was [petitioner] who did those things. It would have required a bizarre reconstruction of the evidence for the jury to return a verdict of guilty against [petitioner] only on the lesser-included ADW count.

Elamin v. United States, No. 14-CF-2234 (Table)(DCCA May 11, 2017) (Doc. 25, Ex. 1, p. 4.)

         Proceeding pro se, petitioner sought rehearing en banc, which was denied. He next filed a motion to recall the mandate, claiming that both Mr. Virgilio and Ms. Fearnley provided ineffective assistance of counsel. The DCCA also denied that motion.

         In September 2017, petitioner filed a petition under 28 U.S.C. § 2241 in the District Court of the District of Columbia. Because petitioner was incarcerated at FCI McDowell, in Welch, West Virginia, the petition was transferred to the U.S. District Court for the Southern District of West Virginia. That court dismissed the petition without prejudice, finding petitioner showed no grounds to proceed under § 2241. El-Amin v. United States, 2018 WL 2728034 (S.D. W.Va., June 5, 2018).

         Following petitioner's transfer to the USPL in June 2018, he filed another petition under § 2241. This Court dismissed that action, finding that petitioner could present his claim of ineffective assistance of appellate counsel in a petition under § 2254.

         In July 2018, petitioner filed the present petition under § 2254 in the U.S. District Court for the District of Columbia, which transferred the matter to the District of Kansas.

         Standard ...


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