United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
Anthony J. Trengay United States iDismct Judge.
Younis El Sayedri (“El Sayedri”) has filed a
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 [Doc. No. 1] (the “Petition”). As his
grounds for relief, Petitioner contends that he was
improperly convicted based on evidentiary errors, he was
denied effective assistance of counsel, he is actually
innocent, and he has continued to be detained pending his
removal to his native country of Sudan in violation of the
U.S. Constitution. Because the Court has already adjudicated
many of these claims in the form of Petitioner's prior
motion pursuant to 28 U.S.C. § 2255 and because the
remaining count is without merit, the Court dismisses the
Conviction and Collateral Review
21, 2013, El Sayedri was convicted following a jury trial of
conspiracy to commit immigration document fraud in violation
of 18 U.S.C. § 371, false or altered passport in
violation of 18 U.S.C. § 1543, false statements in
violation of 18 U.S.C. § 1001, and three counts of
aggravated identity theft in violation of 19 U.S.C. §
1028A. On June 17, 2013, the Court granted Petitioner's
renewed motion for a judgment of acquittal under Federal Rule
of Criminal Procedure 29 on the three counts of aggravated
identity theft. The Court denied Petitioner's motion as
to all of the other counts and also denied Petitioner's
motion for a new trial on the count of conspiracy to commit
immigration document fraud. Petitioner was then sentenced on
October 1, 2013 to concurrent terms of probation, totaling
three years, and was assessed a $300 special assessment. The
court also imposed the special condition of “sixty (60)
days of intermittent confinement to be designated by the
Bureau of Prisons through the United States Probation
Office.” United States v. El Sayedri, No.
1:16-cv-0533, 2016 WL 4578145, at *2 (E.D. Va. July 6, 2016).
Petitioner appealed his conviction on October 2, 2013, and on
August 22, 2014, the U.S. Court of Appeals for the Fourth
Circuit issued an unpublished opinion affirming this
Court's judgment on Petitioner's motions for a
judgment of acquittal and for a new trial and determining
that there was sufficient evidence to support convictions on
all of the charges that remained. See United States v. El
Sayedri, No. 1:12-cr-00290-AJT-1, Doc. No. 310 (E.D. Va.
August 22, 2014).
2016, El Sayedri filed two motions to vacate his sentence
under 28 U.S.C. § 2255 (“Section 2255”),
which were nearly identical; both contended that he was
convicted based on unlawfully obtained evidence and argued
that prosecutors failed to disclose inculpatory evidence
during the trial, that he received ineffective assistance of
counsel, and that he was never made aware of the immigration
consequences of his conviction. El Sayedri, 2016 WL
4578145, at *3-4. This Court denied El Sayedri's Section
2255 motion on July 6, 2016 on several independent bases: (1)
it was untimely; (2) it was meritless and “the claims
raised therein consist[ed] of unsupported conclusory
allegations that are contradicted by the record, ”
id. at *3; and (3) Petitioner did not make a
“substantial showing of the denial of a constitutional
right, ” id. The Court also declined to issue
a certificate of appealability. El Sayedri then appealed this
Court's denial of his Section 2255 motion, and in an
unpublished per curiam opinion entered October 18, 2016, the
Fourth Circuit held that El Sayedri had “not made the
requisite showing” that he was denied a constitutional
right and, therefore, also declined to issue a certificate of
appealability. United States v. El Sayedri, No.
16-7055, 2016 WL 6081373, at *1 (4th Cir. Oct. 18, 2016).
is a native and citizen of Sudan who was admitted to the
United States on November 20, 2000 on a B-1 via. In 2001, El
Sayedri was granted asylum, and on February 21, 2007, he
adjusted his status and became a lawful permanent resident.
After El Sayedri was convicted by this Court of the criminal
violations referred to above, the Department of Homeland
Security served El Sayedri with a notice to appear, which
charged him with being inadmissible to the United States
under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien
convicted of acts involving moral turpitude and also under 8
U.S.C. § 1182(a)(6)(C)(i) as an alien who, by fraud or
willfully representing a material fact, seeks to procure a
visa, other documentation, or admission into the United
States or other immigration benefit. On or about March 31,
2015, El Sayedri was taken into the custody of Immigrations
and Customs Enforcement (“ICE”), where he has
remained to this day.
immigration judge (“IJ”) then sustained the
charges of inadmissibility, and throughout 2015 and 2016, El
Sayedri sought a variety of forms of relief from removal
including cancellation of removal, waivers under 8 U.S.C.
§§ 1182(h) and 1182(i), asylum under 8 U.S.C.
§ 1158, withholding of removal under 8 U.S.C. §
1231(b)(3), and protection under the Convention Against
Torture. On June 8, 2016, the IJ denied all requests for
discretionary relief and ordered El Sayedri removed to Sudan.
On November 10, 2016, the Board of Immigration Appeals
(“BIA”) affirmed the IJ's denial of
discretionary relief and dismissed his appeal. Under 8 U.S.C.
§ 1231(a)(1), El Sayedri's order of removal became
administratively final on the date of the BIA's decision.
Petitioner has still not been removed to Sudan, a deportation
officer has represented to the Court that the officer
completed and submitted an application for a Sudanese travel
document for El Sayedri to the Sudanese embassy in
Washington, D.C. on December 10, 2016 and that once the
travel document is issued, ICE will arrange for El
Sayedri's removal to Sudan. Respondents' Response to
Petition for Writ of Habeas Corpus [Doc. No. 16] at 9.
Petition, El Sayedri claims that he was improperly convicted
based on evidentiary errors, he was denied effective
assistance of counsel, he is actually innocent, and he has
continued to be detained for immigration reasons without
removal in violation of the U.S. Constitution. For the
reasons set forth below, each of these claims fails.
Claimed Deficiencies in Petitioner's Criminal
claims that there were deficiencies in his criminal
proceedings that led to his conviction including, inter
alia, ineffective assistance of counsel, evidentiary
issues, erroneous jury instructions, and actual innocence.
The issue now before this Court is to what extent 28 U.S.C.
§ 2241 (“Section 2241”) is the proper
vehicle to bring these claims regarding the validity of
Petitioner's criminal conviction, particularly where the
Court has already previously adjudicated a 28 U.S.C. §
2255 petition. A defendant convicted in federal court is
generally “required to bring collateral attacks
challenging the validity of their judgment and sentence by
filling a motion to vacate sentence pursuant to . . . §
2255.” In re Vial, 115 F.3d 1192, 1194 (4th
Cir. 1997) (en banc); see also Rice v. Rivera, 617