United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO VACATE SENTENCE (document no.
STEPHEN J. MURPHY, III United States District Judge
Allebban was convicted of obstructing justice in violation of
18 U.S.C. § 1519 and the Court sentenced him to 41
months imprisonment. Allebban appealed to the Sixth Circuit
on the grounds that the Court "abused its discretion by
declining to give his proposed entrapment instruction, "
and erred in "allowing [witness Tahir] Kazmi to invoke
his Fifth Amendment right not to testify, permitting the
Government not to immunize Kazmi's testimony so that he
could testify, and sentencing him as an accessory to a
bribery offense instead of a gratuity offense."
United States v. Allebban, 578 F.App'x 492, 494
(6th Cir. 2014), cert. denied, 135 S.Ct. 2837
(2015). The Sixth Circuit disagreed, and affirmed
Allebban's conviction and sentence. Allebban now moves to
vacate his sentence under 28 U.S.C. § 2255 on the same
grounds - save the sentencing argument - plus the ground that
the Government improperly challenged a juror based on race.
ECF No. 121.
individual sentenced by a federal court may seek to vacate,
set aside, or correct the sentence pursuant to 28 U.S.C.
§ 2255. The statute provides four different grounds for
claiming relief: "(1) that the sentence was imposed in
violation of the Constitution or laws of the United States;
(2) that the court was without jurisdiction to impose such
sentence; (3) that the sentence was in excess of the maximum
authorized by law; and (4) that the sentence is otherwise
subject to collateral attack." Hill v. United
States, 368 U.S. 424, 426-27 (1962) (quoting 28 U.S.C.
§ 2255) (internal quotation marks omitted). Generally,
the motion must allege "(1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory
limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding invalid."
Weinberger v. United States, 268 F.3d 346, 351 (6th
Grounds I, II, and III
argues that his due process right to present a complete
defense was violated by the Court's refusal to grant a
jury instruction on entrapment; his Sixth Amendment right to
compulsory process was violated when the Court allowed
witness Tahir Kazmi's to invoke his Fifth Amendment right
against self-incrimination to avoid testifying on
Allebban's behalf; and his due process right to present a
complete defense was violated when the Government refused to
grant Kazmi immunity. Mot. 14-36, ECF No. 121. The Sixth
Circuit already rejected all of those arguments, however,
when Allebban appealed his conviction and sentence. See
Allebban, 578 F.App'x at 499-506. It is well
established that "a § 2255 motion may not be
employed to relitigate an issue that was raised and
considered on direct appeal absent highly exceptional
circumstances, such as an intervening change in the
law." Jones v. United States, 178 F.3d 790, 796
(6th Cir. 1999). Allebban has not identified any
circumstances of that type here. The Sixth Circuit's
opinion sufficiently establishes that the challenges in
Allebban's § 2255 motion should be denied, and his
Ground IV: Batson Challenge
only new argument is that the Government violated his
constitutional right to equal protection by using a
peremptory challenge to exclude from the jury pool all
members of Allebban's racial class: Arab-American. Mot.
37, ECF No. 121; see Batson v. Kentucky, 476 U.S.
79, 86, 89 (1986) ("The Equal Protection Clause
guarantees the defendant that the State will not exclude
members of his race from the jury venire on account of
race."). "[A] failure to object to the alleged
discriminatory use of peremptory challenges prior to the
conclusion of jury selection results in the waiver of that
objection." United States v. Reid, 764 F.3d
528, 533 n.4 (6th Cir. 2014). In other words, a
Batson challenge "must be raised
contemporaneously with the voir dire process or prior to the
time that the venire is dismissed." Id. at 533.
Allebban did not raise a Batson challenge claim at
trial. See 2/5/13 Tr., ECF No. 63. By failing to
timely object to the alleged Batson violation, he
has waived his right to do so here.
Certificate of Appealability
U.S.C. § 2253(c)(2) requires the Court to determine
whether a petitioner has demonstrated a "substantial
showing of the denial of a constitutional right" such
that a Certificate of Appealability (COA) should issue. 28
U.S.C. § 2253. "The petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484
(2000). Reasonable jurists could not conclude that
Allebban's claims deserve further review. Thus, a COA
will not issue. The Court also denies Allebban leave to
proceed in forma pauperis on appeal, because the appeal
cannot be taken in good faith. See Fed. R. App. P.
it is hereby ORDERED that Allebban's Motion to Vacate
Sentence (document no. 121) is DENIED and the companion civil