United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
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
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.
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.
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
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.)
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
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).
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.
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.