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Muhammad v. United States

United States District Court, S.D. Mississippi, Southern Division

January 16, 2018

RASHEED ALI MUHAMMAD
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION AND ORDER DENYING [165] MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C. § 2255

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the Motion [165] 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 evidentiary hearing.

         I. FACTS AND PROCEDURAL HISTORY

         A. The Indictment and First Superseding Indictment

         On April 22, 2014, a Grand Jury returned an eight-count Indictment [3] 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 [3] at 1. The remaining charges were against Chapman alone. Id. at 2-4.

         After Chapman pleaded guilty to Count 1 of the Indictment, a Grand Jury returned an eight-count First Superseding Indictment [63] against Muhammad. Count 1 of the First Superseding Indictment [63] 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 [63] at 1-4.

         B. Muhammad's Conviction

         Following 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 [87] 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 [108] on April 23, 2015. J. [108] 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 [109] at 1.

         C. Muhammad's Appeal

         On June 4, 2015, the United States Court of Appeals for the Fifth Circuit dismissed Muhammad's appeal for want of prosecution. Order [112] 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 [113] 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 [114] at 1.

         On 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).[1]

         On 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.

         On 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.

         You 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 ...

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