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Muhammad v. Paul

United States District Court, D. Minnesota

June 28, 2019

Abdul-Aziz Rashid Muhammad, aka William Anthony Brown, Petitioner,
v.
David Paul, Warden Federal Medical Center FMC Rochester, Respondent.

          REPORT & RECOMMENDATION

          Tony N. Leung United States Magistrate Judge

         I. INTRODUCTION

         This matter comes before the Court on Petitioner Abdul-Aziz Rashid Muhammad's “Petition Pursuant to 28 U.S.C. § 2241(c)(3) Relief” (“Petition”) (ECF No. 1), and “Application to Proceed in District Court Without Prepaying Fees or Costs” (“IFP Application”) (ECF No. 2). For the reasons discussed below, the Court lacks jurisdiction over the Petition, and therefore recommends this action be dismissed without prejudice. The Court further recommends that the IFP Application be denied as moot as Petitioner previously paid the $5.00 filing fee for this matter.

         II. BACKGROUND

         In 1990, Muhammed was convicted in the United States District Court for the Eastern District of Kentucky of four counts in connection with a 1989 bank robbery: (1) one count of conspiring to commit armed bank robbery and use firearms while committing a felony[1]; (2) one count of aiding and abetting armed bank robbery[2]; (3) one count of using a firearm to commit a felony[3]; and (4) one count of being a felon in possession of a firearm[4]. In re Muhammad, No. 17-5823, 2018 U.S. App. LEXIS 7516, at *1 (6th Cir. Mar. 23, 2018) (order); United States v. Muhammad, 948 F.2d 1449, 1452 (6th Cir. 1991).

         “Muhammad was sentenced to 327 months imprisonment plus a consecutive 20-year mandatory sentence . . ., ” among other things. Muhammad, 948 F.2d at 1452. “The mandatory consecutive sentence was imposed as a result of [Muhammad's] conviction under 18 U.S.C. § 924(c), which mandates such a sentence for those convicted of a second or subsequent violation under that section.” Muhammad v. Purdue, No. 5:12CV129, 2013 WL 4508870, at *1 (N.D. W.Va. Aug. 23, 2013), aff'd, 551 Fed.Appx. 75 (4th Cir. 2014) (per curiam); see also, e.g., In re Brown, Nos. 13-5654/5655, 2013 U.S. App. LEXIS 26544, at *2 (6th Cir. Dec. 23, 2013) (order) (“Brown was sentenced to 327 months of imprisonment plus a consecutive twenty-year mandatory sentence due to his second § 924(c) offense.”).

         III. PETITION

         A. 1974 Conviction Under § 924(c)

         Previously, Muhammad was convicted of bank robbery in 1974. In re Brown, 2013 U.S. App. LEXIS 26544, at *1; Muhammad, 2013 WL 4508870, at *1. “Although he was only seventeen years old at the time of the offense, he was tried and convicted as an adult and sentenced to twenty years of imprisonment plus one year for use of a firearm under 18 U.S.C. § 924(c).” In re Brown, 2013 U.S. App. LEXIS 26544, at *1.

         Five years later, in 1979, Muhammad's § 924(c) conviction and one-year sentence were vacated pursuant to Simpson v. United States, 435 U.S. 6 (1978), “which held that ‘in a prosecution growing out a of a single transaction of bank robbery with firearms, a defendant may not be sentenced' under both § 2113(d) and 924(c).” Muhammad, 2013 WL 4508870, at *1, 3 (quoting Simpson, 435 U.S. at 16).

         B. Postconviction Proceedings

         In 1991, the Sixth Circuit Court of Appeals affirmed Muhammed's conviction and sentence for the 1989 robbery. See generally Muhammad, 948 F.2d 1449. Muhammad has been challenging his sentence for the 1989 robbery since at least 1997. In 1997, Muhammad filed his first motion under 28 U.S.C. § 2255 to vacate his sentence, and he has unsuccessfully sought authorization from the Sixth Circuit Court of Appeals to file a second or successive § 2255 motion on several occasions. See Muhammad, 2013 WL 4508870, at *6 (outlining litigation history); see, e.g., In re Muhammad, 2018 U.S. App. LEXIS 7516; In re Brown, 2013 U.S. App. LEXIS 26544; In re Brown, Nos. 12-5117/5119, 2012 U.S. App. LEXIS 27430 (6th Cir. Nov. 13, 2012) (order); In re Muhammad, No. 11-5490, 2011 U.S. App. LEXIS 26719 (6th Cir. Sept. 8, 2011) (order). Muhammad has also attempted to challenge his sentence through a writ of coram nobis, a writ of audita querela, and writs of habeas corpus pursuant to 28 U.S.C. § 2241. See Muhammad, 2013 WL 4508870, at *6; see also Muhammad v. Wilson, Civil Action No. 3:14CV387-HEH, 2014 WL 4072250 (E.D. Va. Aug. 13, 2014), aff'd, 715 Fed.Appx. 251 (4th Cir. 2017) (per curiam); Muhammad v. Oliver, No. 3:14CV72-HEH, 2014 WL 1050621 (E.D. Va. Mar. 14, 2014).

         In 2011, Muhammad “filed a motion in the Eastern District of Kentucky to vacate his 1990 conviction pursuant to 28 U.S.C. § 1651, seeking a writ of audita querela.” Muhammad, 2013 WL 4508870, at *6 (footnote omitted); see generally United States v. Brown, Criminal Action No. 74-00040 WOB-REW, Civil Action No. 11-07169 WOB-REW, Criminal Action No. 89-00050, 2012 U.S. Dist. LEXIS 190028 (E.D. Ky. Feb. 2, 2012). Muhammad claimed that the enhanced § 924(c) sentence he received in 1990 was improperly based on his § 924(c) conviction from 1974, “which he alleged he discovered for the first time on August 2, 2011, had been vacated in 1979 pursuant to Simpson.” Muhammad, 2013 WL 4508870, at *6; see Brown, 2012 U.S. Dist. LEXIS 190028, at *3-4. Muhammad's § 1651 motion was transferred “to the Sixth Circuit as an unauthorized, second or successive § 2255 motion.” Muhammad, 2013 WL 4508870, at *6; see Brown, 2012 U.S. Dist. LEXIS 190028, at *21.

         The Sixth Circuit denied authorization to file a second or successive § 2255 motion. See generally In re Brown, 2013 U.S. App. LEXIS 26544. In ...


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