MEMORANDUM AND RECOMMENDATION
Before the Magistrate Judge in this federal habeas corpus proceeding
pursuant to 28 U.S.C. §2255 is Movant Syed Maaz Shah's §2255 Motion to
Vacate, Set Aside or Correct Sentence (Document No. 129),*fn1
Memorandum in Support (Document No. 142), and the United
States' Response to Movant's §2255 Motion (Document No. 134). After
reviewing Movant's §2255 Motion and Memorandum, the Government's
Response, the record of the proceedings before the District Court in
the underlying criminal case and on appeal, and the applicable case
law, the Magistrate Judge RECOMMENDS, for the reasons set forth below,
that Movant Syed Maaz Shah's §2255 Motion (Document No. 129) be
Movant Syed Maaz Shah ("Shah"), who is currently in the custody of the United States Bureau of Prisons, is seeking federal habeas corpus relief under 28 U.S.C. §2255. This is Shah's first attempt at §2255 relief.
On April 11, 2007, Shah was charged by Superseding Indictment with possession of a firearm by an illegal alien in violation of 8 U.S.C. §§922(g)(5)(A) and 924(a)(2) (counts one and two), and with possession of a firearm by a non-immigrant alien in violation of 8 U.S.C. §§922(g)(5)(B) and 924(a)(2) (counts three and four). (Document No.30). On May 24, 2007, Shah was found guilty by jury verdict on counts three and four.*fn2 (Document No.84).
Prior to sentencing, a pre-sentence investigation report ("PSR") was prepared, to which Shah filed written objections. (Document Nos. 93, 94, and 98). Pursuant to the PSR, Shah's advisory guideline sentencing range was calculated as follows: (1) Shah had a base offense level of 14 under U.S.S.G. §2K1.2. (2) With an offense level of 14, and a criminal history category of I, he had an advisory guideline sentencing range of 15 to 21 months. On September 14, 2007, Shah was sentenced to a total term of imprisonment of 78 months, to be followed by a 3 year term of supervised release, and a special assessment of $200.00. (Document No. 102, Transcript of Sentencing Hearing, Document No.108, pp. 47-50). Judgment was entered on September 26, 2007. (Document No.106). With respect to the length of Shah's sentence, and in particular the upward departure from the advisory guideline range, Judge Harmon stated:
I heard all the evidence at the trial and which is something that those of us here did but not everybody in the audience or public did. So, I think that it must be emphasized that my rulings and my sentence are based upon what I heard in the evidence and weighing the credibility of the witnesses as well as the presentence report and the Government's filings and the defendant's filings in objection to the report.
Pursuant to §5K2.0 and under §3553(a), the statute-- the statute, I find that an upward departure is warranted as the underlying conduct of the defendant was not fully captured under United States Sentencing Guidelines Section 2K2.1.
Under Chapter 3, the Chapter 3 adjustment under §3A1.4 was not applied because I do not believe that Mr. Shah's crime was an enumerated defense; but had it been applicable, there would have been a 12-level adjustment as well as a bump up in the criminal history category to a VI.
I do find that Mr. Shah's conduct was calculated to influence or affect the conduct of the Government by intimidation or coercion or to retaliate against the Government conduct and is a violation of §956(a)(1), which relates to conspiracy to murder, kidnap, or maim persons abroad, and §1114, which relates to killing or attempted killing of officers and employees of the United States.
So, in an effort to fashion an upward departure that would be appropriate and would also satisfy the sentencing objectives of §3553(a), I believe that it is appropriate for me to add 12 levels to the total offense level of ---Mr. Cook: 16.
The Court: -16. I will not make any adjustments, obviously, to the criminal history category. But I will then, adding 12 points to the 16, would give a total offense level of 28, with which - with a criminal history category of 1, gives a guideline provision range of 78 to 97 months.
And I will say also that part of my upward departure is an effort to satisfy 18 United States Code, Section 3553(a)'s mandate that the Court is consider the deterrence of future crimes not only by the defendant himself but also by other members of the public. (Transcript of Sentencing Hearing, Document No. 108, pp. 47-49).
Shah appealed his conviction to the Fifth Circuit Court of Appeals. Unpersuaded by the arguments raised by Shah, the Fifth Circuit affirmed his conviction. (Document Nos. 126, 127). The Fifth Circuit wrote:
On two bases, Syed Maaz Shah challenges his conviction, by a jury, of possession of a firearm by an alien admitted to the United States under a non-immigrant visa, in violation of 18 U.S.C. §§922(g)(5)(B) and 924(a)(2). Shah also challenges his 78-month prison sentence. (The Government's motion to supplement the record with its original trail exhibits is GRANTED).
Following a lengthy FBI investigation, Shah was arrested on 28 November 2006 at the University of Texas at Dallas, where he was a student. Shah, who testified that he was in the country on a non-immigrant student visa, admitted to the arresting law-enforcement officers that, inter alia, he had been participating in combat training in preparation for "jihad" against the United States.
At trial, the evidence showed that Shah had possessed an Armalite model M-15A4 semi-automatic rifle during two combat training sessions held at a camp in Willis, Texas. The jury found him guilty of violating 18 U.S.C. §§922(g)(5)(B) and 924(a)(2).
At sentencing, the district court concluded that Shah's underlying conduct warranted an upward departure. He was sentenced to 78 months imprisonment.
For the first of his two bases for challenging his conviction, Shah claims the district court erred by admitting in evidence his incriminating post-arrest statements. He maintains the Government failed to demonstrate that the statements were obtained in compliance with Miranda v. Arizona, 384 U.S. 436 (1966). We reject Shah's assertion that he preserved this issue for appeal through his motion to dismiss the indictment. Nevertheless, because the testimony at the hearing on Shah's motion to exclude the evidence clearly focused on whether Shah had voluntarily made the statements to the officers following the issuance of Miranda warnings, we conclude that Shah sufficiently preserved this issue for review.
Whether a defendant voluntarily waived his Miranda rights is a legal question, subject to de novo review. E.g., United States v. Restrepo, 994 F.2d 173, 183 (5th Cir. 1993). We must, however, "give credence to the credibility choices and findings of fact of the district court unless they are clearly erroneous." Id. The Government has the burden of proving, by a preponderance of the evidence: that the defendant voluntarily waived his rights; and that the statements he made were voluntary. Id.
The district court had before it the consistent and corroborative testimony of three officers that Shah did not request an attorney prior to making his incriminating statements. The district court's determination that the officers' testimony was credible, and that Shah's testimony was not credible, was not clearly erroneous. See id. Moreover, by stating its credibility determination on the record, the court complied with its obligations under Federal Rule of Criminal Procedure 12(d). For his other challenge to his conviction, Shah asserts that the district court erred in denying his motion for judgment of acquittal. Shah's motion was based on the affirmative defense of entrapment. Among other things, an undercover agent participated in the training sessions. Shah maintains that person entrapped him. (The Government incorrectly asserts that Shah failed to renew his motion for a judgment of acquittal at the close of the evidence.). "When a jury, which was fully charged on entrapment, rejects the defendant's entrapment defense, the applicable standard of review is the same as that which applies to sufficiency of the evidence." United States v. Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995). We must accept every fact in the light most favorable to the jury's guilty verdict, and we may reverse only if no rational juror could have found, beyond a reasonable doubt, either: (1) a lack of Government inducement; or (2) predisposition to commit the offense charged. E.g., United States v. Reyes, 239 F.3d 722, 739 (5th Cir. 2001).
Ample evidence permitted a rational juror to conclude that Shah was a willing participant in the training sessions, and, thus, that he was not entrapped into possessing a firearm. A defendant's ready and willing participation in Government solicited criminal activity is sufficient to prove predisposition. Id.
Shah's attempt to characterize his purported entrapment as falling within the "Bueno" defense is unavailing. "The principle of Bueno was rejected and the case effectively overruled by the Supreme Court in Hampton v. United States, 425 U.S. 484  (1976)." United States v. Hill, 626 F.2d 1301, 1306 (5th Cir. 1980); see United States v. Bueno, 447 F.2d 903 (5th Cir. 1971).
Shah's contention that he was not "positionally predisposed" to possess a firearm is, likewise, without merit. Even assuming, arguendo, that this court would recognize the positional predisposition concept, Shah has not established that no rational juror could have found that he could not have possessed a firearm without the Government's inducement. See United States v. Ogle, 328 F.3d 182, 188-89 (5th Cir. 2003); see also United States v. Hollingsworth, 27 F.3d 1196, 1200-03 (7th Cir. 1994) (because the defendants had "no prayer of becoming money launderers without the government's aid", they were not positionally predisposed to commit the offense).
Finally, Shah contends that his 78-month sentence should be vacated because the record fails to demonstrate that the district court was aware it could go below "the floor of the guidelines level in sentencing" him. Shah posits that, because he was sentenced prior to the decisions in Gall v. United States, 128 S.Ct. 558 (2007), and Kimbrough v. United States, 128 S.Ct. 558 (2007), the district court was unaware it had the discretion to sentence him below the sentencing range set forth under the advisory guidelines. Shah never apprised the district court of a constitutional claim regarding the court's procedure in assessing his sentence. Accordingly, this issue is reviewed only for plain error. See United States v. Arnold, 416 F.3d 349, 355 (5th Cir. 2005). His contention fails on the second prong of plain-error review: he fails to show a clear or obvious error.
In Gall and Kimborough, "the Supreme Court ... more explicitly set forth the permissible considerations in imposing a sentence, whether within or without an applicable Guidelines range." United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008). Even prior to the decisions in Gall and Kimbrough, the Supreme Court had already recognized that a district court could impose a sentence that varied from the advisory guideline range based solely on policy considerations, including disagreements with the Guidelines. See Williams, 517 F.3d at 809 (referencing Rita v. United States, 127 S.Ct. 2456 (2007); see also United States v. CamposMaldonado, 531 F.3d 337, 339 (5th Cir. 2008) (noting that, in Kimbrough, "the Court reiterated what it had conveyed in Rita"). Because Rita was decided before Shah was sentenced, Shah's contention that the subsequent decisions in Gall and Kimbrough would have changed the district court's sentencing perspective is without merit. Moreover, there is no indication in the record that the district court believed the advisory guidelines range should presumptively apply. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008). As stated, Shah has not demonstrated clear or obvious error in the district court's imposition of his sentence.
See Arnold, 416 F.3d at 355. (Document No. 126).
Shah petitioned the United States Supreme Court for review. Shah's petition for a writ of certiorari was denied on October 5, 2009. (Document No. 128). Within one year of his conviction being final, on September 28, 2010, Shah signed his §2255 Motion, it was logged in as mail by the Federal Correctional Facility on September 29, 2010, and postmarked October 5, 2010. Because Shah timely delivered his §2255 Motion to prison officials, it is deemed timely. (Document No. 129). A Memorandum in Support of Shah's §2255 Motion was subsequently filed, in which counsel briefed Shah's claims of ineffective assistance of trial counsel. (Document No. 142).
Shah raises claims of ineffective assistance of counsel, both at trial and on appeal. According to Shah, his trial counsel was constitutionally ineffective in three areas: first, for failing to lodge objections to clearly inadmissible evidence; second, for failing to utilize available impeachment and/or exculpatory evidence; and third, for failing to argue relevant legal issues at sentencing. Shah, also argues that appellate counsel was ineffective for failing to challenge trial counsel's ineffectiveness, failing to appeal the court's refusal to admit a statement by Jim Coates to Shah, and failing to appeal the admission of evidence from Shah's computer.
The Government responds that Shah's allegations of ineffective assistance of trial or appellate counsel are without merit and that Shah's§2255 Motion to Vacate, Set Aside or Correct Sentence should be dismissed because Shah is not entitled to relief. According to the Government, Shah has not shown that his counsel was deficient nor has he shown he was prejudiced by the alleged errors. The Government has submitted the affidavit of Shah's counsel, in which counsel responds to the allegations in Shah's §2255 Motion. (Document No. 135). Counsel states in pertinent part:
All of these matters were fact issues objections (sic) to which are governed by the Rules of Evidence. Affiant attempted to make the appropriate objections according to the Rules of Evidence. The specific reasons for objecting or not were based on the admissibility of the particular evidence, whether we could answer specific government testimony in the defense's case, and whether the testimony could more effectively be addressed on cross-examination. Also, some of the complained of testimony were simply collateral matters to the charges for which the defendant was on trial.
Furthermore, affiant's recollection is that the term "jihad" was explained in detail by the defendant and on cross-examination. The term "jamaat" was similarly explored. The other allegations, ix., x., xi, apparently involved trial strategy.
2. These issues were totally explored in the defendant's case and in cross-examination.
3. This appears to be a swearing match where the defendant rebutted the testimony when he testified. Also this was explained on cross-examination.
4. This seems to be a complaint about style over substance. Affiant's recollection is that these issues were properly addressed at sentencing.
The defendant's complaints appear to be a re-hash of the testimony and his review of how the case should have been argued. He mostly complains about argument in the case. (Document No. 135).
The background facts relevant to the instant action are set forth in the offense conduct section of Shah's PSR. (Document No. 98). The PSR states in pertinent part:
6. The FBI in a related case were investigating the activities of Kobie Diallo Williams and James Coates, both United States citizens, in July 2004. It was determined that from June 29, 2004 to July 3, 2004, Williams and Coates camped at Big Bend National Park in Southwest Texas. During this trip, Williams and Coates, dressed in Muslim attire and bearing firearms, were stopped by local law enforcement authorities. The local authorities contacted the FBI about their contact with Williams and Coates. In July 2004, the FBI opened a preliminary investigation.
7. On July 9, 2004, FBI personnel attempted to interview Williams at his Houston residence and Williams advised he would not talk to agents unless he had his attorney present. Williams' wife, Priscilla J. Williams urged Williams not to speak to the agents, and she slammed the door on the agents.
8. In February of 2005, Coates approached the FBI concerning his association with Williams, Adnan Mirza and others. At this initial meeting Coates told the FBI that in the presence of Mirza and Coates, Williams had announced that he planned to travel to Iraq to fight with the Mujahideen. In light of Coates' statements, the case involving Williams was converted to a full-field investigation.
9. On March 1, 2005, Coates agreed to consensually record his conversations with Williams and Mirza. There were numerous consensually recorded conversations by Coates, with his dealings with Williams, Mirza, and others.
10. According to Coates, he and Williams began discussing the best weapons for "urban warfare" in the spring of 2005. Coates and Williams attempted to shoot at a shooting range on April 15, 2005, but the shooting range closed early. Subsequently, Williams, Mirza and Coates decided to organize a weekend in May of 2005 for camping and firearms training at San Houston Park, north of Conroe, Texas. They had several firearms training sessions, at various camping locations.
11. At these camping/firearms training weekends, Williams, Mirza and Coates discussed sending money overseas to help the jihad and train in battlefield jihad. Williams discussed ways to travel to Iraq, by stating he was going on behalf of a relief organization. The group discussed travel papers, hotels, masjids (who might offer assistance) and the need to move cautiously. Mirza noted that "they're monitoring everybody who comes in and out from the airports." Williams expressed his main concern, "is finding the right people." The group focused on two locations, Iraq and Afghanistan.
12. On June 4, 2005, Williams and Mirza met Coates and an undercover police officer (UC) at the American Shooting Center in Houston, Texas, to further train with firearms. Coates told Williams and Mirza that the UC, a Muslim, was an old friend with military experience who was willing to teach military tactics to the group.
13. On January 13, 2006 through January 14, 2006, the over-night camping/firearms training weekend was conducted at "Camp Khalid Bin Waleed" in Willis, Texas (which was recorded). Williams, Mirza, Coates, the UC and Syed Maaz Shah (Shah), a citizen of Pakistan, [who] had come into the United States on an F-1 Student Visa issued in 2002, participated in the firearms training. The next day, on January 14, 2006, the group after conducting their morning prayer, engaged in conversations as to their backgrounds, individuals they knew who associated with known terrorists or involved with terrorist organizations, their religion, and other general topics. At one point, Shah showed the UC his passport and stated "[w]anna see what a terrorist passport looks like?" Shah pointed to various country stamps on his passport to include Pakistan, United Arab Emirates, Oman, London, England, and the United States.
14. During a consensually recorded conversation between Coates and Mirza on February 10, 2006, Mirza discussed the difficulties of entering into Pakistan given the current political climate. Mirza went on to state that, "... as long as we are here" (in the United States) the men needed to give "them" as much financial support as "we can give them." Based upon prior conversations with Mirza, Coates understood that Mirza was encouraging that they provide further financial support to the Mujahideen fighters and/or their families.
15. Coates asked Mirza, "On the lines of planning, what do you suppose, (what) groups that we should target to get involved with over there?" Mirza responded, "I think initially we should try to seek any assistance through Hanif Ismail. Because Ayub, Ayub (Badat) mentioned that he knows groups who are into it. Right...Over there." When Coates asked, "Yeah?" Mirza replied, "[a]nd ..., he even visited some."
16. Coates continued to gather information from Mirza, asking, "[w]ell, see there's another thing, if Ayub (Badat) knows people in those groups ... are you talking about the Taliban groups?" Mirza clarified his remarks regarding the groups working with Badat by stating, "No, not necessarily. Other, other fighters. Related (to the Taliban) but not directly. But strong, strong groups."
17. Coates told Mirza, "... we might not go in a jama'at. you know what I mean?" Mirza implied that the men would not be returning to the United States after they traveled overseas to engage in armed jihad.
18. During a meeting consensually recorded by the UC on February 14, 2006, Mirza, Williams and Coates specifically discussed the route they would take to enter Afghanistan. Using the Internet while the UC was in the same room, the men viewed a map of Pakistan and identified and discussed staging areas/routes they would take to engage in battlefield jihad (although the term "battlefield jihad" was not explicitly used). The group focused on locations northeast and southwest of Islamabad.
19. The investigation continued as to the activities of Williams, Mirza and others.
20. The investigation determined that Shah was recruited to join the group, and, Shah had participated in two of the groups's weekend firearms/defensive training sessions. On January 14, 2006, during one of the weekend training sessions which was recorded, Shah stated to the UC, while brandishing his passport, "[w]anna see what a terrorist passport looks like?"
21. Based upon investigation, there was insufficient evidence to connect Shah to the larger conspiracy, thus, he was charged with various gun violations.
22. On November 30, 2006, Shah was arrested by FBI agents in Dallas, Texas, at his Richardson campus apartment. Shah made a statement, according to the FBI 302, that he originally met Mirza through a community mosque, or through neighborhood contacts in Houston, Texas. Their acquaintance originally occurred when Shah was in middle school, or the first part of high school. Shah also advised that he frequently attends various mosques around the Houston area. One of the main mosques that he is affiliated with is "El Farooq," formerly known as ISGH. Shah related that while he has been in Richardson he attended the Richardson Mosque.
23. Shah advised that he was very interested in weapons and had attended a firearms training camp, twice, with Williams, Mirza, Coates, and Malik Mohammad (UC). They all referred to the training as "camping." At this training, Shah advised that he fired an M-16 approximately ten times, an AR-15, M-4, and a shotgun. Shah noted that when he fired the M-16 he only fired it in semi-automatic mode.
24. According to Shah, the weapons were always brought to the training facility by Coates and Malik Mohammad. Shah believed both of these individuals to be working for or cooperating with the FBI.
25. Shah was questioned as to the real reason he was involved in firearms training, and hesitantly replied that he was participating in combat training in preparation for jihad. When questioned as to why, Shah responded by saying that it was his obligation to fight oppressive and corrupt governments, such as the United States. Shah went on to say that the killing of Muslims in Iraq by the United States was an example of his justification to participate in jihad against Americans.
26. Shah was asked whether he had admitted to others during his training for jihad that he was a terrorist. Shah initially stated that he had not, then recanted and said that he may have said this as a joke. When asked specifically if he (Shah) had held up his passport during one of the sessions for firearms training and made the statement, [t]his is the passport of a terrorist, Shah replied "maybe."
27. Shah consented for his vehicle and apartment to be searched. Agents seized Shah's computer which was subsequently analyzed. The computer was found to contain multiple documents relating to Jihad, some which were from At-Tibyan Publications. Among these documents was a document from Shaykh Abu Muhammad Al Maqdisi written from a prison, a letter from Shaykh Nasir al-Fahd from prison, a document by al-Imaam Ibn Nuhaas ad-Dimyaati with the title of "An advice to those who Abstain from Fighting in the Cause of Allah." Other documents relating to conducting jihad were also found, one of which was from Sheik Omar Abdel Rahman, aka, "The Blind Sheik," implicated in the World Trade Center Bombing. Other documents were titled "The Islamic Law of War," and "Treatment of Prisoner of War." Also found in the computer were blogs from the At-tibyaan website written by Shah, where Shah added quotes from Abu Musab Az-Zarqawi, referring to jihad.
28. Shah's computer contained digital photographs of buildings that were later identified as buildings in the Houston area and appeared to be taken from an elevated angle. Other digital photographs depicted Shah and others in training and camping in a forest area with firearms. There were several simulation games, such as "Counter Strike" which is a game in which terrorists fight counter-terrorism agents. Another on-line game, which was identified as "Quest4Bush" which was a video game that prompts players to kill characters that look like President Bush.
29. FBI investigated the Internet sites which had been accessed using Shah's computer which are videos, among them which were of "Al-Qaeda" related to attacks on American and Coalition Forces and "Al-Qaeda" propaganda relating to jihad. (Document No. 98)(bold in original).
Claims of ineffective assistance of counsel are generally measured by the standard of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must be able to show that his counsel was deficient and that the deficiency prejudiced him to the extent that a fair trial could not be had. Strickland, 466 U.S. at 687. Deficiency is judged by an objective reasonableness standard, with great deference given to counsel and a presumption that the disputed conduct is reasonable. Id. at 687-88. The prejudice element requires a petitioner to prove that absent the disputed conduct of counsel, the outcome would have been both different and more favorable. Id. at 694-95. Under Strickland, a petitioner must establish both deficiency and prejudice prongs to be entitled to habeas relief. The failure to establish either deficient performance or prejudice makes it unnecessary to examine the other prong. United States v. Seyfert, 67 F.3d 544, 547 (5th Cir. 1995).
Under the deficiency prong of Strickland, judicial scrutiny of counsel's performance is "highly deferential" and "a strong presumption" is made that "trial counsel rendered adequate assistance and that the challenged conduct was the product of reasoned trial strategy." Wilkerson v. Collins, 950 F.2d 1054, 1064-65 (5th Cir. 1992), cert. denied, 509 U.S. 921 (1993) (citing Strickland). To overcome the presumption of competence, the petitioner "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, 466 U.S. at 690. Under the prejudice prong of Strickland, a petitioner must be able to establish that absent his counsel's deficient performance, the result of his trial could have been different. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691.
Constitutionally effective assistance of counsel under Strickland is not errorless counsel. The determination of whether counsel has rendered reasonably effective assistance turns on the totality of facts in the entire record. Each case is judged in light of the number, nature, and seriousness of the charges against a defendant, the strength of the case against him, and the strength and complexity of his possible defense. Baldwin v. Maggio, 704 F.2d 1325, 1329 (5th Cir. 1983), cert. denied, 467 U.S. 1220 (1984). The reasonableness of the challenged conduct is determined by viewing the circumstances at the time of that conduct. Strickland, 466 U.S. at 690. "We will not find inadequate representation merely because, with the benefit of hindsight, we disagree with counsel's strategic choices." Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999) (quoting Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997)). Conclusory allegations of ineffective assistance of counsel do not raise a constitutional question in a federal habeas petition. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000), cert. denied, 531 U.S. 849 (2000) (citing Barnard v. Collins, 958 F.2d 634, 642 (5th Cir. 1992); Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)).
The United States Supreme Court in Harrington v. Richter, ___U.S.___, 131 S.Ct. 770, 778 (2011) recently discussed Strickland in the context of a habeas proceeding involving a state conviction. While Harrington did not involve a federal habeas proceeding involving a federal conviction, the Court's discussion of Strickland and ineffective assistance of counsel claims is instructive and equally applies to claims brought in a federal habeas proceeding such as those raised herein.
With respect to ineffective assistance of counsel claims, the Court observed that there are "'countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.' Rare are the situations in which the 'wide latitude counsel must have in making tactical decisions' will be limited to any one technique or approach." Id. at 788-89 (quoting from Strickland, 466 U.S. at 689). As a result, counsel's performance does not fall below that guaranteed by the Sixth Amendment where it can be shown that counsel formulated a strategy that was reasonable at the time and balanced limited resources with effective trial tactics and strategies. Harrington, 131 S.Ct. at 789. "Just as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities." Harrington, 131 S.Ct. at 791. Moreover, "it is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy." Harrington, 131 S.Ct. at 791 (emphasis added). Finally, in considering the prejudice prong of Strickland, the likelihood of a different result must be substantial, not just conceivable. Id. at 791-792 (Citations omitted). As a result, "'[s]urmounting Strickland's high bar is never an easy task.'" (quoting from Padilla v. Kentucky, 559 U.S. ___, ___, 130 S.Ct. 1473, 1485 (2010)). The Court observed:
Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom.
Harrington, 131 S.Ct. at 778 (citations omitted).
As to the specific examples of ineffective assistance of trial counsel which Shah cites in support of his ineffectiveness of trial claims, such as that counsel could have and should have objected to clearly inadmissible evidence, failed to utilize available impeachment and/or exculpatory evidence, and failed to properly argue relevant legal issues at sentencing, the record either affirmatively shows that Shah's trial counsel was not deficient or there is no evidence that the alleged errors prejudiced Shah within the meaning of Strickland.
Shah suggests that counsel could have and should have objected to clearly inadmissible evidence and could have and should have utilized available impeachment and exculpatory evidence. Shah's counsel responded to Shah's §2255 Motion in an affidavit in which he stated in pertinent part, that his decisions were based on trial tactics and strategy. According to counsel, he weighed the following factors:
All of these matters were fact issues objections to which are governed by the Rules of Evidence. Affiant attempted to make the appropriate objections according to the Rules of Evidence. The specific reasons for objecting or not were based on the admissibility of the particular evidence, whether we could answer specific government testimony in the defense's case, and whether the testimony could more effectively be addressed on cross-examination. Also, some of the complained of testimony were simply collateral matters to the charges for which the defendant was on trial. (Document No. 135).
Here, even assuming that counsel could have and should have made the objections as argued by Shah or more fully utilized available impeachment/exculpatory evidence, Shah has not shown that he was denied effective assistance of counsel. Having reviewed Shah's allegations, in light of counsel's affidavit, in which he explained his strategy at trial as related to the specific errors raised by Shah, and the transcript of the trial, Shah has not overcome the presumption that counsel's decisions represented sound trial strategy. The record clearly shows that counsel was prepared for trial. He was familiar with all of the exhibits, and engaged in thorough examinations of the witnesses. While counsel may not have objected when Shah contends he could have or should have, the record, nonetheless shows that counsel responded in a manner consistent with his trial strategy.
Shah was charged with possession of a firearm by a non-immigrant. His defense was that he was entrapped into possessing a firearm by the undercover agents and that he was not positionally predisposed to possess a firearm. Counsel presented evidence that Shah intended to fish while at the camp, not shoot weapons. Shah's ineffectiveness of trial counsel allegations suggest a disagreement with how his case could have or should have been argued. A court should not find inadequate representation merely because, with the benefit of hindsight, the court disagrees with counsel's strategic choices. Green v. Johnson, 116 F.3d 115, 1122 (5th Cir. 1997). "A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chose that it permeates the entire trial with obvious unfairness." Green, 116 F.3d at 1122. (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)(on hearing). As discussed below, the record corroborates counsel's sworn affidavit that his decisions concerning when to object or the presentation of evidence were based on sound trial tactics.
Shah also suggests that counsel could have and should have objected to clearly inadmissible evidence. Shah points to several exchanges which he claims show that counsel could have and should have objected when the witnesses, none of which were qualified as experts under Fed.R.Evid.702,*fn3 were allowed to offer testimony that required specialized knowledge or alternatively, were allowed to offer opinions that were not based on their own perceptions and were contrary to Fed.R.Evid. 701.*fn4 According to Shah, both Malik Mohammed, the undercover agent, and FBI Agent John McKinley should not have been allowed to offer their interpretation of the word "jihad." Shah claims that FBI agent McKinley testified that it meant "armed conflict" (Document No. 115, p. 153) and that Malik Mohammed testified that it meant "fight--we wanted to fight people that were oppressing, you know, Muslims." (Document No. 115, p. 191). Shah argues that testifying about the meaning of a term such as jihad required specialized knowledge. The Government responds that there were repeated references by witnesses including Shah to terms such as "jihad" and "jamaat." The Government further argues that counsel attempted to show that "jihad" has many meanings and that Shah was not predisposed to engage in armed conflict.
Here, the record shows that Agent McKinley testified that he was the case agent assigned to an investigation in 2004 involving Kobie Williams, James Coates and Adnan Mirza that was called Operation 8-Traq. (Document No. 115, p. 148-151). Agent McKinley testified that in the context of this case that "jihad" refered to armed combat. On cross examination, counsel questioned Agent McKinely about his expertise in defining "jihad." Agent McKinley testified that he was not fluent in Arabic, and acknowledged that the term "has many different meanings." (Document No. 115, p. 171). On re-direct, Agent McKinley clarified:
Q. And why is it that in the context of what you heard, you believe the term "jihad" meant combat, armed combat?
A. Because their discussions containing references to jihad or discussions about jihad were also within the context of what they were training for.
A. To go overseas and engage US coalition forces in Afghanistan in combat operation. (Document No. 115, p. 174-175).
Again, the record shows that Agent McKinley testified on cross examination about his understanding of armed jihad:
Q. Where did they say that they were going overseas and going to engage the United States in combat?
A. Sir, I don't have a specific word-for-word example, but the context of the tapes, when you listen to them, it is clear.
Q. As a matter of fact, they never say they are going overseas to engage the United States troops and coalition troops in combat, do they?
A. Word for word, no. (Document No. 115, p. 175).
Even assuming that counsel could have and should have objected to Agent McKinley's interpretation of the word "jihad", Shah has not and cannot show he was prejudiced within the meaning of Strickland. Counsel's cross examination of Agent McKinley highlighted that the term "jihad" had multiple meanings.
Like Agent McKinley, Malik Mohammed was questioned about various terms used in the investigation. As noted by Shah, he defined "jihad" as a fight. In particular:
Q. And then I use the term jaamat with this group of men, Kobie Williams, Adnan Mirza, the defendant, what does ...