KORMAN, J.:
Petitioner, Gurmeet Singh Dhinsa, was convicted of numerous offenses following a jury trial that involved approximately 100 witnesses and lasted nearly four months. United States v. Dhinsa, 243 F.3d 635, 642 (2d Cir.), cert. denied, 534 U.S. 897, 122 S.Ct. 219, 151 L.Ed.2d 156 (2001). The evidence presented at trial, as described by the Second Circuit on direct appeal, showed that "Dhinsa was the self-professed leader of the `Singh Enterprise,' a vast racketeering organization built around a chain of fifty-one gasoline stations that Dhinsa owned and operated throughout the New York City metropolitan area under the name `Citygas.'" Id. at 643. Dhinsa's enterprise "generated tens of millions of dollars, which were used, inter alia, to bribe public officials, purchase weapons and carry out crimes of violence aimed at protecting the enterprise's operations and its profits." Id. The jury found Dhinsa guilty on 21 of 29 counts charged in the superseding indictment, including four counts for which the jury could have imposed the death penalty, although it chose not to do so. See id. at 642.
Dhinsa was sentenced to eight life terms for two counts of racketeering, two counts of murder in aid of racketeering, two counts of obstruction of justice murder, one count of conspiracy to commit kidnapping in aid of racketeering, and one count of kidnapping in aid of racketeering. Judgment at 1, United States v. Dhinsa, No. 97-cr-672-ERK (E.D.N.Y. Oct. 15, 1999), ECF No. 440. Several other terms of imprisonment were imposed for various firearm, conspiracy, and fraud offenses, including four 120-month terms to run consecutive with each other but concurrent with the life terms; eight 60-month terms to run consecutive with each other but concurrent with the life terms; and one 60-month term to run consecutive with all other terms. Id. The Second Circuit ultimately vacated two of the counts for which Dhinsa had been sentenced to life terms and one of the counts for which he had been sentenced to a 60-month term to run concurrent with the life terms. See Dhinsa, 243 F.3d at 677-78. This left Dhinsa with his current sentence: six life terms, four 120-month terms, and eight 60-month terms. Two of the six life terms rest on obstruction of justice murder charges, 18 U.S.C. § 1512(a)(1)(C) (counts 5 and 9). Dhinsa filed the instant petition for a writ of habeas corpus challenging these two counts.
The two obstruction of justice murder convictions at issue here are predicated on the murders of Manmohan Singh and Satinderjit Singh, two Citygas employees. Dhinsa, 243 F.3d at 660. The evidence presented at trial regarding these murders is detailed in the Second Circuit decision on direct appeal. Numerous witnesses testified that throughout 1997, Manmohan
Id. at 661.
The evidence supporting Satinderjit's obstruction of justice murder was equally overwhelming:
Id. The Second Circuit continued: "With respect to Satinderjit, the evidence presented at trial established that Satinderjit was in fact cooperating with the [local] police at the time Dhinsa ordered Dodson to kill him, providing police with information regarding Manmohan's murder, Kulwant's disappearance and the Citygas pump-rigging scheme." Id. at 657. The evidence at trial demonstrated that federal officers began an extensive investigation of Dhinsa in July 1997, just one month following Satinderjit's June 1997 murder and four months following Manmohan's March 1997 murder. Id. at 644-45, 647. Indeed, as relevant to this petition, the Second Circuit specifically held that "[t]he record amply demonstrates that Dhinsa murdered Manmohan and Satinderjit to `depriv[e] the government of ... potential witness[es].'" Id. at 657 (citations omitted).
On September 16, 2002, Dhinsa filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the Central District of California, where he was incarcerated, in which he argued that he had received the ineffective assistance of trial counsel (and not that he was actually innocent). Resp't's Mem. Opp'n Habeas Pet., Gov't App'x at 66, 69, ECF No. 25. The petition was dismissed on the ground that a petition for a writ of habeas corpus challenging the validity of a judgment of conviction had to be filed in the judicial district in which he was convicted. See id. at 74. Dhinsa then filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 in the Eastern District of New York. Id. at 51. Dhinsa had filed his petition in California at the eleventh hour, and the statute of limitations was not tolled during that proceeding in California. See Dhinsa v. Herrera, 173 Fed.Appx. 630, 630-31 (9th Cir. 2006). By the time Dhinsa filed his motion pursuant to § 2255, it was untimely and thus dismissed. Id. at 630. The Second Circuit denied a motion for a certificate of appealability and dismissed Dhinsa's ensuing appeal, Resp't's Mem. Opp'n Habeas Pet., Gov't App'x at 107, ECF No. 25, and the Supreme Court denied certiorari. Dhinsa v. Herrera, 543 U.S. 1188, 125 S.Ct. 1429, 161 L.Ed.2d 191 (2005).
On June 29, 2004, Dhinsa filed a motion under FED. R. CIV. P. 60(b)(6) in the Central District of California, arguing that his original § 2241 petition should have been transferred to the Eastern District of New York rather than dismissed. Motion for Relief from Judgment, Dhinsa v. Herrera, No. 02-cv-7211-VAP-SGL (C.D. Cal. June 29, 2004), ECF No. 6; Dhinsa, 173 Fed. Appx. at 631. This motion was rejected, as was the appeal that followed. Dhinsa, 173 Fed.Appx. at 631. On May 16, 2012, Dhinsa filed another petition pursuant to
Dhinsa's petition was transferred to the Eastern District of New York, Order, Aug. 17, 2012, ECF No. 11, and then to the Second Circuit pursuant to 28 U.S.C. § 2255(h) for certification as a successive petition. Order at 2, Aug. 23, 2012, ECF No. 14. On May 6, 2013, the Second Circuit remanded the petition to determine whether (1) Dhinsa "satisfies the criteria set forth in 28 U.S.C. § 2255(e), and may therefore bring his petition under ... 28 U.S.C. § 2241, see Triestman v. United States, 124 F.3d 361 (2d Cir. 1997); see also Fowler v. United States, 563 U.S. 668, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011) (requiring, for a conviction under 18 U.S.C. § 1512(a)(1)(C), the government to show a `reasonable likelihood' that the victim would have communicated with federal officials); and, if so, (2) whether the petition can and should be granted under § 2241." Mandate, May 6, 2013, at 1-2, ECF No. 15.
Title 28 U.S.C. § 2255 provides that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Dhinsa, who previously filed a motion pursuant to § 2255, is precluded from filing a petition challenging his conviction because he cannot satisfy the criteria for filing a successive and otherwise untimely petition as set out in 28 U.S.C. § 2255(f), (h). Nevertheless, § 2255(e) provides that § 2255 will not bar a petition for a writ of habeas corpus pursuant to § 2241, so long as "it also appears that the remedy by motion [pursuant to § 2255] is inadequate or ineffective to test the legality of his detention." Under circumstances that I will discuss more fully, the Second Circuit has held that § 2255(e) may permit a prisoner to file a petition challenging the legality of his detention. Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997). While Dhinsa has done so here, the petition fails because even if he is actually innocent of the obstruction of justice murders, Dhinsa is lawfully detained pursuant to his four unchallenged life sentences.
Indeed, to the extent that a federal habeas petitioner challenges a conviction for which he received a concurrent sentence, he is not challenging the validity of his detention. Instead, his standing to bring such a challenge is predicated on
While it has taken slightly different forms throughout history, the concurrent-sentence doctrine is understood today as a principle of law under which an appellate court reviewing a conviction need not hear the challenge if another valid conviction carries a sentence equal to or greater than the challenged conviction. Concurrent-Sentence Doctrine, BLACK'S LAW DICTIONARY (10th ed. 2014). The doctrine traces back to at least 1711 and was expressly utilized throughout the Eighteenth Century by English appellate courts hearing criminal cases. See Nathan H. Jack, Toward a Uniform Rule: The Collapse of the Civil-Criminal Divide in Appellate Review of Multitheory General Verdicts, 81 U. CHI. L. REV. 757, 760 & n.16 (2014). The Supreme Court employed an early variation of the doctrine in Claassen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 S.Ct. 966 (1891). There, a criminal defendant was convicted of five offenses and sentenced to one six-year prison term. Id. at 141, 147, 12 S.Ct. 169. The defendant appealed all of his convictions, but the Court addressed only one of them, holding that because the one conviction was "sufficient to support the judgment and sentence, the question of the sufficiency of the other counts need not be considered." Id. at 146, 12 S.Ct. 169. "In criminal cases, the general rule, as stated by Lord Mansfield before the Declaration of Independence, is `that, if there is any one count to support the verdict, it shall stand good, notwithstanding all the rest are bad.'" Id. (citations omitted).
For nearly one hundred years following Claassen, the Supreme Court utilized the concurrent-sentence doctrine regularly and without hesitation. Thus, in Lawn v. United States, the Court employed the then-most recent iteration of the doctrine. Specifically, it observed that the defendant "also contests the sufficiency of the evidence to support the verdicts against him on Counts 7 and 9, but since the sentence upon those counts run concurrently with the sentence on Count 10, which we have found sustained by the evidence, it is unnecessary for us to consider those contentions." 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958) (citations omitted). Similarly, in Hirabayashi v. United States, the Court wrote: "Since the sentences of three months each imposed by the district court on the two counts were ordered to run concurrently, it will be unnecessary to consider questions raised with respect to the first count if we find that the conviction
In Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Court addressed the issue whether collateral consequences that attached to a challenged conviction were sufficient to give the case "an adversary cast and make it justiciable." Significantly, it acknowledged that it had adopted a very lenient standard for determining justiciability. See id. at 790, 89 S.Ct. 2056. Indeed, after setting out one example of possible collateral consequences, the Court recognized that "this possibility may well be a remote one," but nonetheless found it to be sufficient. Id. at 790-91, 89 S.Ct. 2056. Nevertheless, assuming that there was such a controversy, "[i]t may be that in certain circumstances a federal appellate court, as a matter of discretion, might decide (as in Hirabayashi) that it is `unnecessary' to consider all the allegations made by a particular party. The concurrent sentence rule may have some continuing validity as a rule of judicial convenience." Id. at 791, 89 S.Ct. 2056. Shortly after Benton, the Court expressly invoked the concurrent-sentence doctrine as a matter of discretion. Barnes v. United States, 412 U.S. 837, 848 n.16, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). In so doing, the Court observed that, "[a]lthough affirmance of petitioner's conviction on two of the six counts carrying identical concurrent sentences does not moot the issues he raises pertaining to the remaining counts, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), we decline as a discretionary matter to reach these issues." Barnes, 412 U.S. at 848 n.16, 93 S.Ct. 2357; see also United States v. Alessi, 638 F.2d 466, 476 (2d Cir. 1980) (applying the concurrent-sentence doctrine because "no purpose would be served in reviewing the legality of the duplicative sentences").
Subsequently, in Rutledge v. United States, 517 U.S. 292, 301-02, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), the Supreme Court repeated language from its earlier holding in Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), that a "second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence." More specifically, "the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and certainly carries the societal stigma accompanying any criminal conviction." Rutledge, 517 U.S. at 302, 116 S.Ct. 1241 (citations omitted) (quoting Ball, 470 U.S. at 865, 105 S.Ct. 1668). Nevertheless, in response to the argument that the defendant "will never be exposed to collateral consequences like those described in Ball," the Rutledge Court ultimately declined to resolve the
Ultimately, in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the Supreme Court began a retreat from "its earlier willingness to presume adverse consequences sufficient to defeat a claim of mootness." 7 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 27.5(a) (4th ed. 2015). There, a defendant was sentenced to a three-year term of imprisonment but then was released on parole with approximately eighteen months remaining in his sentence. Spencer, 523 U.S. at 3, 118 S.Ct. 978. His parole was then revoked and he was returned to jail after a hearing at which it was determined that he had used illicit drugs. See id. at 3-5, 118 S.Ct. 978. With six months remaining in his sentence, the defendant filed a habeas petition, arguing that the revocation of his parole violated due process. Id. at 5, 118 S.Ct. 978. The defendant was ultimately released before his habeas petition was adjudicated, id. at 6, 118 S.Ct. 978, and the Court held that the habeas petition was moot because the three-year sentence had been served and because there were no collateral consequences stemming from the parole revocation. See id. at 8, 14-16, 118 S.Ct. 978. Among the collateral consequences that the Court rejected were those which it had previously suggested in Ball could preclude the application of the concurrent-sentence doctrine. Specifically, the defendant in Spencer had argued that his parole revocation could affect him because it could be used: (1) "to his detriment in a future parole proceeding"; (2) "to increase his sentence in a future sentencing proceeding"; (3) "to impeach him should he appear as a witness or litigant in a future criminal or civil proceeding"; and (4) "against him directly ... should he appear as a defendant in a criminal proceeding." Id. at 14-15, 118 S.Ct. 978. While the Court conceded that its prior holdings might require the "presumption" of collateral consequences, this presumption was not conclusive. See id. at 8, 13, 118 S.Ct. 978.
The Spencer Court explained that, as a general matter, the conception of Article III standing has changed since the days of Benton v. Maryland, evolving to require concrete injuries-in-fact rather than speculative collateral consequences. 523 U.S. at 11-14, 118 S.Ct. 978. Accordingly, it rejected all of the defendant's proposed collateral consequences as speculative "rather than a certainty or even a probability," id. at 14, 118 S.Ct. 978, holding that the case was moot and that it failed to satisfy Article III's case-or-controversy requirement. Id. at 14-18, 118 S.Ct. 978; see also Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). Indeed, more recently, in Clapper v. Amnesty Int'l USA, the Supreme Court held that: "To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling. Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes — that the injury is certainly impending. Thus, we have repeatedly reiterated that threatened injury must be certainly impending
While I need not go so far in order to decide the concurrent-sentence aspect of this case, in my view virtually none of the far-fetched hypothetical collateral consequences that have been cited in earlier cases are sufficient to satisfy the standard set out in Clapper, and these cases are no longer good law. Indeed, even before Clapper, the Supreme Court focused on the issue of whether collateral consequences are adequate to meet Article III's injury-in-fact requirement. See United States v. Juvenile Male, 560 U.S. 558, 560, 130 S.Ct. 2518, 177 L.Ed.2d 64 (2010) (per curium). There, the defendant challenged on direct appeal certain conditions of his federal supervised release requiring that he register as a sex offender. Id. By the time the case reached the Supreme Court, the underlying term of supervised release had expired, thus raising a question of mootness. Id. Nevertheless, there was a potential collateral consequence to the supervised release: the prospect that, due to the operation of state law, the defendant would be permanently subject to sex registry requirements because his now-expired federal supervised release once required sex registration. Id. at 561, 130 S.Ct. 2518. The Court held that, "this case likely is moot unless [defendant] can show that a decision invalidating the sex-offender-registration conditions of his ... supervision would be sufficiently likely to redress `collateral consequences adequate to meet Article III's injury-in-fact requirement.'" Id. at 560, 130 S.Ct. 2518 (emphasis added) (quoting Spencer v. Kemna, 523 U.S. 1, 14, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)).
Perhaps out of deference to the Supreme Court's marked shift in focus to the application of Article III's injury-in-fact requirement, federal courts still sometimes invoke the concurrent-sentence doctrine on direct appeal, such as when a defendant appeals only his sentence rather than his entire conviction. See, e.g., United States v. Pardo, 25 F.3d 1187, 1194 & n.6 (3d Cir. 1994). Indeed, only recently the Second Circuit alluded to "the Supreme Court's continued acceptance, in however limited a form, of the concurrent sentence doctrine, which allows courts, in their discretion, to avoid reaching the merits of a claim altogether in the presence of identical concurrent sentences." Tavarez v. Larkin, 814 F.3d 644, 649 (2d Cir.), cert. denied, U.S. ___, 137 S.Ct. 106, 196 L.Ed.2d 86 (2016). Similarly, numerous state courts continue applying the doctrine without reservation, and in doing so they often stress the doctrine's "value in preserving scarce judicial resources and in avoiding the unnecessary decision of potentially difficult legal questions." 7 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 27.5(b) (4th ed. 2015).
Significantly, the concurrent-sentence doctrine is most applicable within the context of habeas review because a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 attacks only the legality of the petitioner's confinement. Put another way, habeas corpus serves "to examine the legality of the commitment" and to "liberate an individual from unlawful imprisonment." Ex parte Watkins, 28 U.S. 193, 202-03, 3 Pet. 193, 7 S.Ct. 650 (1830). Thus, as Justice Harlan once observed,
Fay v. Noia, 372 U.S. 391, 449, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) (Harlan, J., dissenting) (emphasis added) (quoting 28 U.S.C. § 2241).
Yet, as stated earlier, Dhinsa admits that the success of his current petition will not alter the length or nature of his custody, or affect the legality of his continued detention — he will not be released. Pet'r's Ltr., Feb. 25, 2015, ECF No. 27. Specifically, as I observed earlier, in the event that the obstruction of justice murder convictions (counts 5 and 9) are vacated, Dhinsa will still remain imprisoned serving four other life sentences, including two life sentences imposed for murder in aid of racketeering involving the same victims as those in the obstruction of justice murders. In his briefing, Dhinsa contested the application of the concurrent-sentence doctrine based primarily on the special assessments that were imposed on counts 5 and 9. Pet'r's Mem. Addressing Concurrent Sentence Doctrine at 1-4, ECF. No. 32. At oral argument, however, Dhinsa's counsel conceded that special assessments are a "legal fiction" within the context of collateral consequences, and that Dhinsa has no interest in actually obtaining a refund. See Transcript of Oral Argument, July 8, 2015, at 20, ECF No. 36. Instead, Dhinsa relied on Gonzalez v. United States, 792 F.3d 232, 237 (2d Cir. 2015), which stands for the proposition not relevant here that onerous restitution orders might be cognizable on habeas review in those limited circumstances where they create a "severe restraint on liberty."
Moreover, Dhinsa's counsel conceded during oral argument that none of the hypothetical collateral consequences set out in United States v. Vargas, 615 F.2d 952, 959-60 (2d Cir. 1980), similar to those alluded to earlier, and that preclude application of the concurrent-sentence doctrine, apply on the facts here except possibly societal "stigma" due to serving six life sentences instead of four. Transcript of Oral Argument, July 8, 2015, at 6-7, 17, ECF No. 36. Of course, Vargas itself questioned the strength of stigma as a collateral consequence under the circumstances of that case. 615 F.2d at 960. Moreover, under the facts here, it cannot reasonably be argued that vacating two of Dhinsa's six life sentences will remove a societal stigma from which Dhinsa suffers a discernable injury. This is especially true because Dhinsa does not contest that he murdered Manmohan and Satinderjit. See Pet'r's Mem. Supp. Habeas Pet. at 7-9, ECF. No. 2; Pet'r's Suppl. Mem. Supp. Collateral Relief at 6-8, ECF No. 24.
Indeed, these concurrent sentences provide a more compelling reason for not presuming far-fetched hypothetical collateral consequences that may be sufficient in a case involving a single count of conviction and an expired prison sentence. Thus, in a recent case involving such a single count of conviction, the Second Circuit indulged a presumption that such collateral consequences were present. See Nowakowski v. New York, 835 F.3d 210, 223-26 (2d Cir. 2016). In so doing, it alluded to Supreme Court cases declining to apply the doctrine of mootness based on "the possibility that the conviction would be used to
Nowakowski, 835 F.3d at 225.
While this standard is hard to reconcile with the Article III analysis set out in Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013), the burden that Nowakowski places on the prosecution is easily met in the present case. Because the four concurrent mandatory life sentences that Dhinsa is serving would not be affected by the relief he seeks here, there can be no enhancement of a future conviction. While Dhinsa argues "who knows what would happen in the future," Transcript of Oral Argument, July 8, 2015, at 3, 17, ECF No. 36, it is nearly impossible to imagine a scenario in which Dhinsa's four other life terms would be vacated such that the present habeas petition could have any practical consequence. Moreover, even if prosecuted for a subsequent offense, his testimony would be subject to comparable impeachment because of his conviction for the murders of Manmohan and Santinderjit on the unchallenged murder counts, in addition to the other offenses of which he was convicted that were also predicated on the very same murders. See Nowakowski v. New York, 835 F.3d 210, 225 n.19 (2d Cir. 2016) ("[I]f the identified collateral consequences arise from separate and independent grounds from that conviction, the conviction `can have no meaningful effect ... and hence cannot serve as a possible collateral consequence.'" (quoting Perez v. Greiner, 296 F.3d 123, 126 (2d Cir. 2002)). Indeed, as discussed below, Dhinsa does not even argue that he would suffer those collateral consequences.
While the foregoing analysis should suffice to reject Dhinsa's petition based on the application of the concurrent-sentence doctrine, I add this caveat. In a line of cases, the most recent of which is Tavarez v. Larkin, 814 F.3d 644, 648 (2d Cir.), cert. denied, ___ U.S. ___, 137 S.Ct. 106, 196 L.Ed.2d 86 (2016), the Second Circuit has either declined to apply the concurrent-sentence doctrine or reaffirmed its unwillingness to do so based on the far-fetched hypothetical collateral consequences to which I have already alluded. See also
The foregoing considerations aside, I address the merits of Dhinsa's petition because the order of the Second Circuit on remand directed me to consider the issue whether (1) Dhinsa "satisfies the criteria set forth in 28 U.S.C. § 2255(e), and may therefore bring his petition under... 28 U.S.C. § 2241, see Triestman v. United States, 124 F.3d 361 (2d Cir. 1997); see also Fowler v. United States, 563 U.S. 668, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011) (requiring, for a conviction under 18 U.S.C. § 1512(a)(1)(C), the government to show a `reasonable likelihood' that the victim would have communicated with federal officials); and, if so, (2) whether the petition can and should be granted under § 2241." Mandate, May 6, 2013, at 1-2, ECF No. 15.
In Triestman v. United States, 124 F.3d 361, 374-78 (2d Cir. 1997), which was discussed earlier, the Second Circuit interpreted 28 U.S.C. § 2255(e), which has come to be known as an "escape hatch" that allows a petitioner who cannot otherwise obtain relief pursuant to § 2255 to obtain relief pursuant to 28 U.S.C. § 2241. There, the petitioner argued that "if § 2255 forecloses all judicial review in a case in which a federal prisoner claims that, on the record, he is innocent of the crime of which he stands convicted — in circumstances in which that claim could not have been presented earlier, it is unconstitutional to that extent." Triestman, 124 F.3d at 378 (internal quotation marks omitted). The Second Circuit agreed that "serious Eighth Amendment and due process questions would arise with respect to the AEDPA if [it] were to conclude that... Congress had denied [the petitioner] the right to [obtain] collateral review in this case." Id. at 378-79. Consequently, the Second Circuit held that the escape hatch would be available to a prisoner who "cannot, for whatever reason, utilize § 2255, and in which the failure to allow for collateral review would raise serious constitutional questions." Id. at 377. "[T]o date, [the Second Circuit has] recognized only one" type of case "raising such serious constitutional questions," namely, "cases involving prisoners who ... can prove `actual innocence on the existing record.'" Cephas v. Nash, 328 F.3d 98, 104 (2d Cir. 2003) (quoting Triestman, 124 F.3d at 363); see also Rivas v. Fischer, 687 F.3d 514, 551 (2d Cir. 2012). Or, as the Ninth Circuit has succinctly summarized, citing Triestman and several other decisions from the courts of appeals, "a § 2241 petition is available under the `escape hatch' of § 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has not had an `unobstructed procedural shot' at presenting that claim." Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003)). Thus, the threshold issue here is whether Dhinsa could have previously presented
Dhinsa claims that Fowler "changed the law" regarding obstruction of justice murder. The underlying statute — referred to as the "federal witness tampering statute" — makes it a crime "to kill another person, with intent to ... prevent the communication by any person to a law enforcement officer ... of the United States of information relating to the ... possible commission of a Federal offense." 18 U.S.C. § 1512(a)(1)(C). In Fowler v. United States, 563 U.S. 668, 670, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011), the Supreme Court "focus[ed] on instances where a defendant killed a person with an intent to prevent that person from communicating with law enforcement officers in general but where the defendant did not have federal law enforcement officers (or any specific individuals) particularly in mind." More specifically, the question presented in that case "concern[ed] what, if anything, the Government must show beyond this broad indefinite intent in order to show that the defendant more particularly intended to prevent communication with federal officers as well." Id. The Court held that, "in such circumstances, the Government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer." Id. This standard is satisfied where the "likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical." Id. at 678, 131 S.Ct. 2045.
Fowler cannot be said to have changed the law, either by overruling one of its own cases or by adopting a rule contrary to the law of the Second Circuit (as was true in Triestman, where the Supreme Court expressly overruled the standard that had been applied in the Second Circuit). See Triestman, 124 F.3d 361, 364 (2d Cir. 1997). Instead, the Supreme Court granted Fowler's petition for certiorari to resolve a conflict between, on the one hand, the standard set out by the Fourth Circuit in United States v. Harris, 498 F.3d 278, 286 (4th Cir. 2007), and, on the other hand, the standard set out by the Second Circuit in United States v. Lopez, 372 F.3d 86, 91-92 (2d Cir. 2004), vacated on other grounds, 544 U.S. 902, 125 S.Ct. 1613, 161 L.Ed.2d 273 (2005). Fowler, 563 U.S. at 671, 131 S.Ct. 2045. Under the Fourth Circuit's standard, the "federal nexus" requirement in § 1512(a)(1)(C) was met "[s]o long as the information the defendant seeks to suppress actually relates to the commission or possible commission of a federal offense." Harris, 498 F.3d at 286. In contrast, under the Second Circuit's standard, the federal nexus requirement was met by the prosecutor's showing of a "federal crime along with `additional appropriate evidence' that the victim plausibly might have turned to federal officials.'" Fowler, 563 U.S. at 671, 131 S.Ct. 2045 (quoting Lopez, 372 F.3d at 91-92). The Oxford American Dictionary defines "plausible" as "seeming reasonable or probable." Plausible, OXFORD AMERICAN DICTIONARY 761 (1999).
Fowler held that, in order to satisfy the "reasonable likelihood" standard, "[t]he Government need not show that such a communication, had it occurred, would have been federal beyond a reasonable doubt, nor even that it is more likely than not," but only that the chance of such a communication "was more than remote, outlandish, or simply hypothetical." 563 U.S. at 678, 131 S.Ct. 2045. The Supreme Court thus rejected the Fourth Circuit's standard, which merely called for the prosecutor to show the "possibility that [the victim's] information would eventually be communicated to federal authorities." Harris,
Dhinsa argues that Fowler presents a standard that was not available at the time of his direct appeal. He is wrong. Fowler did not change the law of the Second Circuit, except possibly to make it less defendant-friendly. While Dhinsa takes comfort from a recent Second Circuit case that declined to "explore what gap, if any, exists between Fowler's `reasonable likelihood' standard and our previous `plausibility' formulation," United States v. Veliz, 800 F.3d 63, 75 (2d Cir.), cert. denied, ___ U.S. ___, 136 S.Ct. 522, 193 L.Ed.2d 411 (2015), the Second Circuit held that the framework it articulated in Lopez for evaluating whether the federal nexus element of § 1512(a)(1)(C) has been established continues to apply after Fowler. See Veliz, 800 F3d. at 74. Moreover, United States v. Diaz, 176 F.3d 52 (2d Cir. 1999), from which Lopez, 372 F.3d at 91, expressly quoted, is the case to which Fowler should most aptly be compared. Diaz — which was available at the time of Dhinsa's direct appeal — held that "[t]he government must prove that at least one of the law-enforcement-officer communications which the defendant sought to prevent would have been with a federal officer." 176 F.3d at 91. In requiring prosecutors to prove that the victim's communications "would have been with a federal officer," Diaz arguably demanded more of prosecutors than does Fowler, which requires only a "reasonable likelihood."
Dhinsa seems to draw some comfort from the fact that Diaz, 176 F.3d at 90, cited to United States v. Romero, 54 F.3d 56 (2d Cir. 1995). Pet'r's Reply Mem. Supp. Collateral Relief at 2, ECF No. 30. He argues that Romero announced a prosecution-friendly standard similar to the standard rejected by the Supreme Court in Fowler. Id. Dhinsa thus claims that Fowler was a change in law because Diaz's citation to Romero rendered Romero binding at the time of Dhinsa's appeal. Id. This argument is seriously flawed. First, Romero is not contrary to Fowler. Romero held that the government need not prove that a federal investigation was ongoing at the time of a murder in order to satisfy the "federal nexus" requirement in 18 U.S.C. § 1512(a)(1)(C). Romero, 54 F.3d at 62. Yet Fowler endorses that very same idea and expressly contemplates a federal nexus even where a federal investigation begins after a murder. See 563 U.S. 668, 675-76, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011). Second, even assuming that some aspects of Romero were contrary to Fowler, Dhinsa fails in his attempt to portray Diaz as adopting Romero wholesale. Indeed, Diaz merely cited Romero for the general proposition that murder victims can be potential (rather than actual) informants and still satisfy the federal nexus requirement. Diaz, 176 F.3d at 90. This proposition was true at the time of Diaz, and is true today under Fowler. See 563 U.S. at 675-76, 131 S.Ct. 2045.
Significantly, Dhinsa raised at trial the very argument he now presents in his habeas petition. That is, he specifically objected to jury instructions that permitted a finding of guilt based only on the presence of federal crimes rather than a likelihood of communication to a federal officer. See Pet'r's Suppl. Mem. Supp. Collateral Relief at 11-13, ECF No. 24. Indeed, Dhinsa's briefing claims that Dhinsa "forecast[ed] Fowler's holding almost a decade in advance [when he argued at trial that] there has to be some kind of reasonable connection
The Ninth Circuit confronted a similar issue in Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008), where the petitioner sought to bring a habeas petition pursuant to § 2241 claiming that he did not satisfy the "interstate commerce element" of 18 U.S.C. § 844(i), the statute under which he was convicted. The petitioner contended that he qualified for § 2255's "escape hatch" because "his claim was not available" until after the Supreme Court addressed the relevant statutory definition in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), nearly a decade after petitioner's first § 2255 motion. Harrison, 519 F.3d at 959. The Ninth Circuit disagreed. Id. at 960. It found that, while Jones "provided further clarification" of the reasoning set out in Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985) (which came down several years before Harrison's direct appeal and construed the interstate commerce element of § 844(i)), as well as "additional encouragement" for petitioner's argument, it "did not materially vary from the statutory construction set forth in Russell." Harrison, 519 F.3d at 960-61. Harrison also noted that the Ninth Circuit had interpreted the interstate commerce element in two decisions issued before the petitioner's direct appeal, "both of which were consistent with Russell and Jones," and reasoned that those two cases and Russell "provided an ample basis" for the petitioner's argument. Id. at 960-61. "Accordingly, the case law, as it stood at the time that [the petitioner] pleaded guilty, failed to prosecute his direct appeal, and filed his first motion under § 2255, invited the very argument that [the petitioner] attempts to raise many years later through collateral attack." Id. at 961. Harrison therefore concluded that Jones did not rise to the level of a "change in the law creating a previously unavailable legal basis for petitioner's claim." Id. (citing Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003)). Dhinsa's "change of law" argument fails for the same reasons.
Nor can Dhinsa establish that the alleged due process error "has probably resulted in the conviction of one who is actually innocent." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)); see also De Jesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998). Specifically, the evidence here is sufficient to meet the federal nexus standard that Fowler enunciated. Indeed, as mentioned earlier, Dhinsa does not contest that he murdered Manmohan and Satinderjit to prevent their communications with law enforcement, but only whether those communications might have been made to federal officers. See Pet'r's Mem. Supp. Habeas Pet. at 7-9, ECF. No. 2; Pet'r's Suppl. Mem. Supp. Collateral Relief at 6-8, ECF No. 24. Of course, under Fowler v. United States, 563 U.S. 668, 678, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011), the prosecutor need only show a "reasonable likelihood" that "(in the absence of the killing) at least one of the relevant communications would have been made to a federal officer." This standard is satisfied by showing that "the likelihood of communication
The evidence at Dhinsa's trial meets Fowler's federal nexus standard because: (1) "Dhinsa instructed Dodson to kill Manmohan because [Manmohan] was cooperating with the police in a murder investigation involving [Dhinsa's] brother," United States v. Dhinsa, 243 F.3d 635, 660 (2d. Cir. 2001); (2) Dhinsa was involved throughout all pertinent times in federal offenses other than the murders of Manmohan and Santinderjit, including kidnapping, mail fraud, wire fraud, and racketeering, see id. at 642-43, 645-46, 662-63, 670; (3) at the time of his murder, Satinderjit was already communicating with local officers, who ultimately shared the entirety of their investigative material with federal officers, see id. at 644-45, 647; and (4) a federal trial was eventually commenced against Dhinsa involving numerous crimes in addition to the murders of Manmohan and Santinderjit, both of whom would have been likely witnesses. See id. at 642, 657. These facts go well beyond those in United States v. Ramos-Cruz, 667 F.3d 487, 497 (4th Cir. 2012), where the Fourth Circuit recently held that Fowler is met upon showing a federal crime plus "additional appropriate evidence" of a federal nexus, such as a short time period between the victim's murder and the inception of a federal investigation. Id. at 498. Of course, in the present case, Dhinsa concedes that a federal investigation began as early as July 4, 1997, sixteen days after the murder of Satinderjit in June 1997. Pet'r's Reply Br. at 3, ECF No. 30.
Significantly, there is substantial indication that a federal investigation would have ensued had Manmohan and Santinderjit not been murdered. Particularly relevant here was Dhinsa's involvement in numerous kidnappings, including the kidnapping of Muchtir Ghuman (an investor in a local Indian restaurant) and Kulwant (Manmohan's brother), for whom Manmohan was
Moreover, the FBI regularly engages in kidnapping investigations. Indeed, the FBI's webpage containing a list of "frequently asked questions" repeatedly highlights the role it plays in investigating kidnappings. The webpage states that the FBI "absolutely" works with state and local law enforcement on kidnapping matters, and that it will "initiate" a kidnapping investigation involving sensitive victims such as children even where "there is no known interstate aspect." See Frequently Asked Questions, FED. BUREAU OF INVESTIGATIONS (last visited Mar. 1, 2017), available at https://www.fbi.gov/about-us/faqs [https://perma.cc/XEP9-KK32]. And even where the victim is not particularly vulnerable due to his or her status or age, the FBI will "monitor" kidnapping situations even when "there is no evidence of interstate travel, and [offer its] assistance from various entities including the FBI Laboratory." Id. Considering the FBI's commitment to investigating kidnapping, one of the offenses of which Dhinsa was convicted, there is, if nothing else, a "reasonable likelihood" that it would have investigated Dhinsa and had relevant communications with Manmohan or Satinderjit, especially considering the existence of Dhinsa's wide spread pump-rigging scheme, which implicated federal mail and wire fraud statutes. Dhinsa, 243 F.3d at 662-63. Surely, it cannot be said that such a conclusion is "outlandish" given that the FBI did in fact involve itself in the investigation that resulted in the prosecution of Dhinsa for kidnapping and mail fraud. Id. at 647.
I answer both of the questions in the Second Circuit's mandate in the negative. I grant a certificate of appealability with respect to my answer to both of those questions.
