Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Al-Jumail v. United States

United States District Court, E.D. Michigan, Southern Division

February 21, 2018

ABDUL MALIK AL-JUMAIL, DEFENDANT-PETITIONER,
v.
UNITED STATES, PLAINTIFF-RESPONDENT.

          ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE [#597] AND DENYING CERTIFICATE OF APPEALABILITY

          Denise Page Hood, United States District Court Chief Judge

         I. BACKGROUND

         On May 1, 2014, Defendant Abdul Malik Al-Jumail (“Al-Jumail”), along with his co-defendants, was charged in a Third Superseding Indictment with Conspiracy to Commit Health Care Fraud (18 U.S.C. § 1349) (Count I) and Conspiracy to Pay and Receive Health Care Kickbacks (18 U.S.C. § 371) (Count II). (Doc # 287) On September 30, 2014, after a twelve-week trial, a jury found Al-Jumail guilty on both counts. (Doc # 377) The Court sentenced Al-Jumail to be imprisoned for a total term of 120 months (ten years) for Count I, and 36 months (three years) for Count II. The Court entered a Judgment on May 22, 2015. (Doc # 450) Al-Jumail appealed his conviction, arguing that the prejudice he suffered from being tried alongside his daughter co-defendant, caused by this Court's denial of his motion to sever, entitled him to a new trial. The United States Court of Appeals for the Sixth Circuit found Al-Jumail's challenge without merit, and affirmed the judgment. (Doc # 581)

         On June 8, 2017, Al-Jumail filed the instant pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, arguing his counsel was ineffective for (1) failure to advise Al-Jumail of his right to testify on his own behalf at trial; and (2) advising Al-Jumail to reject the plea deal offered by the government based upon a false belief regarding Al-Jumail's chances of being deported. (Doc # 597, Pg ID 4-5) The Government filed a Response on November 13, 2017. (Doc # 630) Al-Jumail filed a Reply on November 27, 2017. (Doc # 634)

         For the reasons set forth below, Al-Jumail's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 is DENIED.

         II. ANALYSIS

         Section 2255 authorizes a federal prisoner to move the district court to vacate a sentence. 28 U.S.C. § 2255(a). Motions brought under Section 2255 are subject to a one-year limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996, generally running from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2253(f)(1); Dunlap v. United States, 250 F.3d 1001, 1004-05 (6th Cir. 2001). As an initial matter, the Court notes that Al-Jumail's Motion was timely filed.

         To prevail on a Section 2255 motion, the movant must show “(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 Cir. 2001).

         A. Ineffective Assistance of Counsel

         Al-Jumail argues his counsel was ineffective because he (1) failed to advise Al-Jumail of his right to testify on his own behalf at trial and (2) advised Al-Jumail to reject the plea deal offered by the government based upon a false assessment of Al-Jumail's chances of being deported. (Doc # 597, Pg ID 4-5) The Government responds that Al-Jumail's arguments lack merit because he has failed to show deficient performance by his counsel and he has not shown that his counsel's performance prejudiced him. (Doc # 630, Pg ID 5-13)

         Under the Sixth Amendment, a defendant has a right to “have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI. A defendant has a right to “reasonably effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court articulated a two-prong test to show ineffective assistance of counsel: “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” Id. “There is a strong presumption that legal counsel is competent.” United States v. Osterbrock, 891 F.2d 1216, 1220 (6th Cir. 1989). In addition, a “reviewing court must give a highly deferential scrutiny to counsel's performance.” Ward v. United States, 995 F.2d 1317, 1321 (6th Cir. 1993). “The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986).

         To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. The defendant bears the burden of showing that counsel was deficient and that prejudice resulted from counsel's errors. Id. at 686-87.

         Al-Jumail contends is trial counsel rendered ineffective assistance of counsel by failing to advise Al-Jumail of his right to testify at trial. Al-Jumail claims that his trial counsel's “sole strategy at trial was to attempt to impeach the government's witness during cross-examination, ” and that this strategy did not allow Al-Jumail “to deny the allegations made against him . . . in front of the jury and in his own words.” (Doc # 597, Pg ID 4) Al-Jumail's trial counsel, Mr. Ayad (“Ayad”), asserts that he informed Al-Jumail of his right to testify in his own defense, and explained that Al-Jumail not testifying was a strategic decision because (1) there was a great risk that the jury would have found Al-Jumail untruthful; (2) Al-Jumail testifying would have potentially exposed him to impeachment with a prior conviction dealing with veracity; and (3) Al-Jumail's demeanor on the stand would have undermined the defense that he was an innocent and naïve victim of his co-defendant's influence and control. (Doc # 630-2, Pg ID 3, ¶ 12)

         “The right of a defendant to testify at trial is a constitutional right of fundamental dimension and is subject only to a knowing and voluntary waiver by the defendant.” United States v. Webber, 208 F.3d 545, 550 (6th Cir. 2000). Although the decision whether to testify rest solely with the defendant, “when a tactical decision is made not to have the defendant testify, the defendant's assent is presumed.” Id. at 551 (citation omitted). A defendant's attorney is presumed to follow the professional rules of conduct, and is “strongly presumed to have rendered adequate assistance” in carrying out the general duty “to advocate the defendant's cause and the more particular duties to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.