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Dhinsa v. J.E. Krueger

United States District Court, E.D. New York

March 2, 2017

GURMEET SINGH DHINSA, Petitioner,
v.
J.E. KRUEGER, Respondent.

          MEMORANDUM & ORDER

          Edward R. Korman United States District Judge.

         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 (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.

         FACTUAL AND PROCEDURAL BACKGROUND

         I. Obstruction of Justice Murders

         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[1] was actively searching for his brother, Kulwant, who had disappeared from a Citygas station in 1995. Id. at 643, 660. Manmohan suspected Dhinsa of kidnapping Kulwant or otherwise contributing to Kulwant's disappearance. See Id. at 660. According to trial testimony from Marvin Dodson and Evans Alonzo Powell (two of Dhinsa's co-conspirators), Dhinsa “instructed Dodson to kill Manmohan because [Manmohan] was cooperating with the police in a murder investigation involving [Dhinsa's] brother.” Id. Specifically, “Dhinsa told Dodson to check with Gulzar [another member of Dhinsa's criminal enterprise] to confirm [Manmohan's] identity and directed Dodson to go to a nearby Citygas station to pick up the gun to be used for the murder [of Manmohan].” Id. at 660-61. Next, “at Dhinsa's suggestion that he find someone to assist him in committing the murder, Dodson contacted Powell, a member of the trio of hitmen employed by Dhinsa.” Id. at 661. The Second Circuit described the evidence against Dhinsa as “direct and overwhelming, ” id. at 660, on this issue of Manmohan's obstruction of justice murder:

Powell's testimony and cellular telephone and pager records corroborate Dodson's version of the events surrounding Manmohan's murder. The telephone records establish that Dodson made numerous attempts to contact Dhinsa and Gulzar during the period March 14 through March 16, 1997, the day Manmohan was murdered. These records also indicate that Dodson called Dhinsa and Gulzar within hours after Manmohan was murdered, presumably to inform them of his success. The government also presented evidence that the vehicle driven by Dodson during the murder was registered to a company owned by Dhinsa, and that Dhinsa arranged to have the truck repainted and re-registered following Manmohan's murder.

Id. at 661.

         The evidence supporting Satinderjit's obstruction of justice murder was equally overwhelming:

Numerous witnesses testified that Satinderjit was actively cooperating with police in an investigation of Dhinsa and the Singh Enterprise at the time he was murdered. Uberoi, Satinderjit's girlfriend, testified that Dhinsa contacted her twice, threatening to have her and Satinderjit shot if Satinderjit continued to assist the police in its investigation of Dhinsa. Dodson testified that Dhinsa ordered Satinderjit murdered shortly after [a] July 1997 police raid of his Citygas offices in Brooklyn, New York. Dodson further testified that Dhinsa drove him to Satinderjit's neighborhood and identified his apartment. A short time later, Dhinsa provided Dodson with a photograph of Satinderjit and a printout of the registration and license plate for Satinderjit's car. . . .
Similar to Manmohan's murder, cellular telephone records corroborate Dodson's version of Satinderjit's murder. These records show that Dhinsa made in excess of thirty telephone calls to Dodson in the days and weeks before Satinderjit was murdered and establish a sequence of calls between Dhinsa, Samuels [another of Dhinsa's hitmen] and Powell on June 18, 1997, the day Satinderjit was murdered. The telephone records confirm Dhinsa's presence in calling areas near the location where Satinderjit was murdered. The government also presented testimony from Samuels and Powell, who corroborated Dodson's version of Satinderjit's murder, and from Santokh, an employee at a Citygas station owned by Dhinsa, who testified that Dhinsa directed him to change the license plate on the van used by Dodson during Satinderjit's murder.

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 witnesses]."” Id. at 657 (citations omitted).

         II. Post-Conviction History

         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 F. App'x 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 (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 (CD. Cal. June 29, 2004), ECF No. 6; Dhinsa, 173 F. App'x at 631. This motion was rejected, as was the appeal that followed. Dhinsa, 173 F. App'x at 631. On May 16, 2012, Dhinsa filed another petition pursuant to § 2241, this time in the Middle District of Pennsylvania. Dhinsa v. Hufford, No. 3:12-CV-912, 2012 WL 3579652, at *1 (M.D. Pa. Aug. 17, 2012). The petition was based on Fowler v. United States, 563 U.S. 668 (2011), which interpreted the federal jurisdictional element of the federal witness tampering statute, 18 U.S.C. § 1512(a)(1)(C). Although the evidence that Dhinsa was responsible for the death of two young Indian immigrants was overwhelming, he argued that he is “actually innocent” because the federal jurisdictional hook in 18 U.S.C. § 1512(a)(1)(C) has taken on new gloss under Fowler. Habeas Pet. at ¶ 10, ECF No. 1. Specifically, he argued that the prosecution was required to show that there was a “reasonable likelihood” that a relevant communication “would have been made to a federal officer” by Dhinsa's murder victims. Id.; see Pet'r's Mem. Supp. Habeas Pet. at 10-12, ECF. No. 2. Because the jury was not charged in accordance with Fowler, and the evidence at trial was insufficient to meet this standard, Dhinsa claimed that he was entitled to have the part of the judgment that convicted him of obstruction of justice murder (counts 5 and 9) set aside. Habeas Pet. at ¶ 10, ECF No. 1; see Pet'r's Suppl. Mem. Supp. Collateral Relief at 8, 12, ECF No. 24.

         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 (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.

         DISCUSSION

         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. Tr ...


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