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El Sayyid Nosair v. United States of America

January 12, 2012

EL SAYYID NOSAIR, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Richard J. Holwell, District Judge:

MEMORANDUM OPINION AND ORDER

Petitioner El Sayyid Nosair is currently serving his life prison sentence at the Federal Correctional Complex at Terre Haute, Indiana. Nosair brings a petition under 28 U.S.C. § 2255 requesting relief from his convictions for murder, seditious conspiracy, and other crimes. His allegations arise from several items of "newly discovered evidence." But Nosair admits in the petition that he discovered all of this evidence over a year before bringing the petition. As such, the petition is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). For that reason, discussed more fully below, Nosair's petition is dismissed.

I. BACKGROUND

A. Nosair's Conviction and Section 2255 Petition

On October 1, 1995, after a nine-month jury trial in the United States District Court for the Southern District of New York, Nosair was convicted of seditious conspiracy, two counts of attempted murder, murder in furtherance of a racketeering enterprise, attempted murder of a federal officer, three counts of use of a firearm in relation to a crime of violence, and possession of a firearm with an obliterated serial number. See United States v. Rahman, 189 F.3d 88, 103-04 (2d Cir. 1999). The trial and subsequent convictions arose out of the 1993 World Trade Center ("WTC") bombing, but Nosair himself was acquitted of the bombing conspiracy count. See id. at 103. Nosair was subsequently sentenced by Judge Michael B. Mukasey to life imprisonment for the murder charge, and to a total of forty additional years on the other charges, including 240 months on the seditious conspiracy charge. See id. at 111. The Government's prosecution team at Nosair's trial included Assistant United States Attorneys Andrew C. McCarthy, Patrick J. Fitzgerald (now the United States Attorney for the Northern District of Illinois), and Robert S. Khuzami (now the Director of the Division of Enforcement of the United States Securities and Exchange Commission).

In November 2000, Nosair filed a "Notice of Motion" to vacate his sentence pursuant to 28 U.S.C. § 2255. (Docket no. [1] in 2000 Civ. 08383.) Reading the filing as a motion for an extension of time to file a Section 2255 petition, Judge Mukasey denied the filing that same month, without prejudice to Nosair's right to file a Section 2255 petition. (Docket no. [906] in 1993 Cr. 00181.) Nosair subsequently filed Section 2255 petition in the Western District of Louisiana, where he was then incarcerated, in August 2002. (See Lockard Decl. of Jan. 16, 2010 Ex. 2 at unnumbered page 3.) In December 2002, that court transferred the petition to this court; but Judge Mukasey dismissed it in May 2003 as "duplicative" of the November 2000 filing, that he had previously denied. (Id. at 1, 4; see also Docket no. [2] in 2003 Civ. 03766.)

In January 2008 while incarcerated in Colorado, Nosair filed a Section 2241 habeas petition in the District of Colorado.*fn1 In that petition, Nosair alleged he had "newly discovered evidence" based on Peter Lance's 2006 book Triple Cross that the Government had pressured a potential defense witness, Ali Mohamed, not to appear at Nosair's federal trial. (See Lockard Decl. of Jan. 16, 2010 Ex. 5 ("2241 Petition") at 3, 3h.) Nosair also alleged that his entire prosecution was unconstitutional because 18 U.S.C. § 3231, the United States Code provision that grants District Courts original and exclusive jurisdiction over federal criminal actions, was never properly enacted. (Id. at 4.)

On January 11, 2008, the District of Colorado ordered Nosair to show cause why his petition should not be denied since Nosair's contentions "clearly call[ed] into question the validity of his conviction and sentence," as opposed to "the execution of his sentence." (See Lockard Decl. of Jan. 16, 2010 Ex. 6 at 3.) In other words, the petition should have been brought as a Section 2255 petition in the sentencing court (S.D.N.Y.) instead of as a Section 2241 petition in the court of the district of incarceration (D. Colo.). (See id. at 2 ("A habeas corpus application pursuant to 28 U.S.C. § 2241 is not an additional, alternative, or supplemental remedy to the relief afforded by motion in the sentencing court under § 2255. The exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255." (internal quotation marks and citations omitted)).)

Nosair filed a written response to the order, but the District of Colorado found that the response mostly reiterated the arguments in the petition, and dismissed the Section 2241 petition on June 5, 2008. The Tenth Circuit affirmed the dismissal on January 23, 2009. (Lockard Decl. of Jan. 16, 2010 Ex. 12 at 5.)

On March 9 and 27, 2009, Nosair filed two documents in this action that together constitute his current Section 2255 petition (the "Petition"). The first, dated March 9, 2009, is titled "Motion for an Evidentiar [sic] Hearing / And a Request for a New Trial Based on Newly Discovered Evidence"; and the second, dated March 27, 2009, is titled "Motion for Reconsideration, for Granting Relief from Judgment and for Request to a New Trial or Reverse of Judgment, and an Evidentiary Hearing" (together the "Petition"). (See Resp't's Mem. of May 12, 2011 Ex. A (the "3/9 Motion"); Ex. B (the "3/27 Motion").)

The Petition alleges four new discoveries. First is Nosair's April 2007 discovery, through his reading of Peter Lance's Triple Cross (William Morrow 2006), that Mohamed had been interviewed by the Federal Bureau of Investigation ("FBI") prior to Nosair's trial. Nosair alleges, however, that Mohamed never testified at Nosair's federal trial and the Government withheld the information gained during the FBI interview from Nosair during his trial. (3/27 Motion at 3.) The information included (1) that Mohamed had worked for the Central Intelligence Agency ("CIA") and the FBI, and had served in the United States "Special Forces" stationed at Fort Bragg, North Carolina; and (2) that "boxes of evidence" taken from Nosair by the Manhattan District Attorney's office in connection with Nosair's New York State trial had been turned "over to the feds," and "put into evidence" in Nosair's federal trial. (Id. at 3-4.) In addition, Nosair has alleged that the Government "ke[pt] a Major Witness away from Nosair's state and federal trials." (Id. at 10.) This allegation is taken directly from Lance's Triple Cross. Lance, at 172-76.

Nosair's second discovery is his January 2008 revelation, through legal research, that 18 U.S.C. § 3231, the United States Code provision that grants United States District Courts "original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States," 18 U.S.C. § 3231, is unconstitutional. (3/27 Motion at 4.) This assertion is based on Nosair's perception that due to a mix-up between the United States Senate and House of Representatives in 1947 and 1948, Section 3231 was never constitutionally enacted. (See id. at 13.)

Nosair's third discovery came in October 2008. He apparently then read the transcript of Mohamed's guilty plea taken by this court's Judge Leonard B. Sand on October 20, 2000. (See id. at 4-5, and Ex. 4.) Nosair alleges that this transcript "confirms the the [sic] information in the First newly discovered evidence." (3/27 Motion at 4-5.)

Nosair's final discovery, also made in October 2008, apparently came from reading Steve Coll's Ghost Wars (Penguin 2004). Nosair alleges that on February 8, 1995, during the course of his federal trial, FBI agent Bradley Garrett arrested WTC bombing conspirator Ramzi Yousef in Pakistan and transported him by airplane back to the United States. (3/27 Motion at 5, and Ex. 5.) During the course of that flight, Garrett asked Yousef whether he "committed" the WTC bombing and Yousef answered, "I masterminded the explosion." (3/27 Motion at 5.) Yet, alleges Nosair, the prosecution in his federal trial "never revealed to ...


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