United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING  MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY PURSUANT TO 28 U.S.C. § 2255
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE
THE COURT is the Motion  of Rasheed Ali Muhammad
(“Muhammad”) to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody, pursuant to 28
U.S.C. § 2255. This Motion is fully briefed. After due
consideration of the Motion, related pleadings, the record,
and relevant legal authority, the Court is of the opinion
that the Motion is untimely and should be denied without an
FACTS AND PROCEDURAL HISTORY
The Indictment and First Superseding Indictment
April 22, 2014, a Grand Jury returned an eight-count
Indictment  against Muhammad and co-Defendant Roslyn
Demetrius Chapman (“Chapman”). Muhammad was
charged in Count 1 with knowingly and willfully conspiring to
possess with intent to distribute detectable amounts of
certain controlled substances and controlled substance
analogues. Indictment  at 1. The remaining charges were
against Chapman alone. Id. at 2-4.
Chapman pleaded guilty to Count 1 of the Indictment, a Grand
Jury returned an eight-count First Superseding Indictment
 against Muhammad. Count 1 of the First Superseding
Indictment  charged Muhammad with knowingly and willfully
conspiring to possess with intent to distribute detectable
amounts of certain controlled substances and controlled
substance analogues in violation of 21 U.S.C. § 846,
while Counts 2 through 8 charged Muhammad with knowingly and
intentionally possessing with intent to distribute detectable
amounts of specified controlled substances and controlled
substance analogues in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2. 1st Superseding Indictment
 at 1-4.
a five-day jury trial, on January 9, 2015, Muhammad was found
guilty of the charges in Counts 1, 3, 4, 5, 6, and 7 of the
First Superseding Indictment, and was acquitted of those in
Counts 2 and 8. See Jury Verdict  at 1-3.
Muhammad was represented by retained counsel throughout the
trial. Muhammad was sentenced on April 20, 2015, to
consecutive terms of imprisonment of 240 months as to each of
Counts 1, 3, 4, 5, 6, and 7 of the First Superseding
Indictment. See Apr. 20, 2015, Minute Entry. The
Court entered Judgment  on April 23, 2015. J.  at
1. Muhammad requested that the Court file a notice of appeal
on his behalf, which was done on April 23, 2015. See
Notice of Appeal  at 1.
4, 2015, the United States Court of Appeals for the Fifth
Circuit dismissed Muhammad's appeal for want of
prosecution. Order  at 1. On July 10, 2015, Muhammad,
through retained trial counsel Michael W. Crosby
(“Crosby”), filed a Motion to Reopen Appeal,
which the Fifth Circuit granted on July 16, 2015.
See Order  at 1. On August 20, 2015, the Fifth
Circuit again dismissed Muhammad's appeal for want of
prosecution, specifically for failing to timely pay the
docketing fee, order transcripts, and make financial
arrangements with the court reporter. See Order
 at 1.
September 10, 2015, the Fifth Circuit Clerk's Office sent
correspondence to attorney-of-record Crosby, with a carbon
copy to Muhammad, which stated in relevant part as follows:
We have received various copies of documents from Mr.
Muhammad in this closed appeal which was dismissed for
failure to order the transcript and pay the filing fee. [sic]
for Mr. Muhammad. Any motions or other documents may only be
filed on his behalf by his attorney of record, these
documents are forwarded to you as the attorney of record for
whatever action you deem necessary.
If you determine you will no longer represent Mr. Muhammad on
this direct criminal appeal you should file a motion to
reopen the appeal, to withdraw as counsel and for appointment
of new counsel, and a motion to proceed in forma pauperis
with Mr. Muhammad's financial affidavit attached.
United States v. Muhammad, No. 15-60300 (5th Cir.
Sept. 11, 2015).
October 8, 2015, Crosby filed a Motion to Withdraw as counsel
in the Fifth Circuit. United States v. Muhammad, No.
15-60300 (5th Cir. Oct. 8, 2015). Crosby referenced
difficulties he had purportedly experienced with obtaining
in forma pauperis paperwork from Muhammad.
According to Crosby, “[w]e have spoken with the
personnel at the Fifth Circuit Court of Appeals, and we
believe that by filing this motion and requesting to withdraw
from the case, if the Court grants the motion, Mr. Muhammad
would then be able to submit the [in forma pauperis]
documentation himself, directly from his incarcerated
location, and perhaps reopen the appeal.” Id.
at 2. According to the attached Certificate of Service,
Crosby served Muhammad with his Motion. Id. at 4.
October 9, 2015, the Fifth Circuit granted Crosby's
Motion to Withdraw. The Fifth Circuit Clerk sent Muhammad a
letter the same day which read as follows:
We have granted your attorney's motion to withdraw as
counsel from representing you on appeal. Mr. Michael Wesley
Crosby is now removed from our docket as your counsel of
record. We will not send further orders, correspondence, etc.
to him regarding this appeal.
If you choose to pursue this appeal you must remedy the
default or the appeal will remain dismissed.
must file the following motions for consideration with this
court as soon as possible:
1. Motion to Reopen this Case
2. Motion for Appointment of Counsel or
3. Clearly and Unequivocally Advise You Will Proceed Pro Se
4. Motion to Proceed In Forma Pauperis
5. Completed Financial Affidavit
6. Complete the Transcript Order Form and Make Financial
Arrangements with the Court Reporter(s), or
7. Motion for Transcripts at Government Expense
We enclose a transcript order form for use as necessary. If
you do not need additional transcripts, please ...