Duka v. United States

DRITAN DUKA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

SHAIN DUKA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civ. No. 13-3664 (RBK)

Civ. No. 13-3665 (RBK)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

August 4, 2020

OPINION

ROBERT B. KUGLER, U.S.D.J.

I. INTRODUCTION

Petitioners, Dritan and Shain Duka (hereinafter collectively "Petitioners") are federal prisoners. Dritan is proceeding with a motion for leave to amend his 28 U.S.C. § 2255 motion. (See No. 13-3664 ECF 86). Shain is proceeding with an amended motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (See No. 13-3665 ECF 84). Also pending before this Court are Respondent's motions to file sur-replies in both cases in response to Petitioners' pending motions. (See No. 13-3664 ECF 100; No. 13-3665 ECF 87). For the following reasons, Respondent's motions to file sur-replies are granted. Dritan's motion for leave to amend is granted in part so that certain claims contained therein (most notably his claims not previously denied) can be analyzed. However, on Dritan's § 2255 claims that are permitted to proceed, they are denied. Shain's amended motion to vacate, set aside or correct his sentence is denied as the claims contained therein are denied.¹ A certificate of appealability shall issue on this Court's application of the concurrent sentence doctrine's rationale in declining to review Petitioners' § 924(c) convictions. It shall not issue on the remaining claims that are denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

Petitioners, their brother Eljvir Duka, Mohammed Shnewer and Sedar Tatar were convicted after a jury trial of various federal charges. As this Court noted in a prior opinion:

Shnewer, the Duka brothers, and Tatar are a group of young men who lived in New Jersey and developed an interest in violent jihad, particularly attacks against the United States military. Defendants, who had known each other since high school, came to the FBI's attention after it received a copy of a video that was brought to a Circuit City store in Mt. Laurel, New Jersey for copying. The video dated from January 2006 and depicted the five defendants and others at a firing range in the Pocono Mountains, shooting weapons and shouting "Allah Akbar!" and "jihad in the States."

Over the course of the next sixteen months, the FBI deployed two cooperating witnesses, Mahmoud Omar and Besnik Bakalli, to monitor defendants' activities. The evidence presented at trial showed that, between January 2006 and May 2007, defendants viewed and shared videos of violent jihadist activities, including beheadings, around the world; they viewed and shared videos of lectures advocating violent jihad against non-Muslims; they sought to acquire numerous weapons, including automatic firearms and rocket-propelled grenades; they returned to the Poconos, where they againengaged in shooting practice; they discussed plans to attack the United States military; they conducted research and surveillance on various potential targets for such an attack in New Jersey, Pennsylvania, and Delaware; and they procured a map of the United States Army Base at Fort Dix to use in planning and coordinating such an attack.

With respect to the individual defendants, the evidence demonstrated the following:

Mohamad Shnewer is a naturalized American citizen who was born in Jordan. He admired and sought to emulate the "nineteen brothers," i.e., the September 11 hijackers, Osama bin Laden, and the leader of Al Qaeda in Iraq, Abu Musab al-Zarqawi. Shnewer openly discussed and planned attacks on military targets in New Jersey, Pennsylvania, and Delaware. Along with Omar, the government informant, he staked out the United States Army Base at Fort Dix, McGuire Air Force Base, Lakehurst Naval Air Station, and the United States Army Base at Fort Monmouth in New Jersey; the United States Coast Guard Base in Philadelphia, Pennsylvania; and Dover Air Force Base in Delaware. Shnewer also considered attacking the federal government building at 6th and Arch Streets in Philadelphia and drove by the building to determine whether such an attack would be feasible. To accomplish an attack on these targets, Shnewer proposed deploying a gas tanker truck as a bomb, using roadside bombs or surface-to-air missiles, and spraying military targets with machinegun fire. He sought to acquire AK-47 machineguns from Omar to use in such an attack.

Dritan, Shain, and Eljvir Duka are brothers who were born in Albania. During the events that were the subject of the trial, they were in the United States illegally. In 2006 and 2007, the Dukas took at least two trips to the Poconos to train for jihad by firing weapons, attempting to buy automatic weapons, discussing jihad, and watching violent jihadist videos. The Dukas befriended government informant Bakalli, a fellow Albanian, and encouraged him to join them in avenging Muslimswho had been oppressed in the United States and Israel. They viewed and praised a lecture, Constants on the Path to Jihad, by Anwar al-Awlaki, the prominent cleric and proponent of attacks against the United States military, and videos depicting attacks on American soldiers by violent jihadists in Iraq and elsewhere. In recorded conversations presented at trial, the Dukas described beheadings depicted in the videos as just punishment for traitors. The Dukas watched the beheading videos over and over again until they became inured to the spectacle. Dritan told Bakalli that, although at first he "couldn't take it," "[n]ow I see it and it's nothing, I do not care. I saw hundreds being beheaded." Similarly, Eljvir told Bakalli that the beheadings were difficult to watch at first, but that "[n]ow we can watch it no problem."

Like Shnewer, the Dukas sought to acquire firearms to further their plans. They could not acquire weapons lawfully because they were in the country illegally, so they turned to the black market. By January 2007, the three brothers told Bakalli they had acquired a shotgun, two semi-automatic rifles, and a pistol, and they continued to look for opportunities to buy machineguns.

Later that spring, Dritan Duka ordered nine fully automatic weapons - AK 47s and M-16s - from a contact of Omar in Baltimore. The FBI arranged a controlled transaction, and, on May 7, 2007, Dritan and Shain Duka went to Omar's apartment to retrieve their weapons. After handing Omar $1,400 in cash, Dritan and Shain examined and handled four fully automatic machineguns and three semiautomatic assault rifles. They asked Omar for garbage bags to conceal the weapons (so they would look like golf clubs) as they carried them out to the car. Before they could get there, however, federal and state law enforcement officers entered Omar's apartment and arrested them. The entire transaction was captured on video by equipment installed in Omar's apartment by the FBI and was shown to the jury at trial.

Serdar Tatar is a lawful permanent resident in the United States who was born in Turkey. Tatar appears in the video of defendants' January 2006 training trip to the Poconos. After extensive discussions with Omar about Shnewer's plan to attack Fort Dix, Tatar agreed to help by providing Omar with a map of Fort Dix to use in planning such an attack. Regarding the overall plan to attack Fort Dix, Tatar told Omar in a recorded conversation, "I'm in, honestly, I'm in." All five defendants were arrested on May 7, 2007, after Dritan and Shain Duka completed the controlled firearm purchase from Omar.

United States v. Duka, 671 F.3d 329, 333-35 (3d Cir.2011). . .

[T]he Dukas were charged with: (1) conspiracy to murder members of the United States military in violation of 18 U.S.C. §§ 1114 & 1117 ("Count I"); (2) attempt to murder members of the United States military in violation of 18 U.S.C. § 1114 ("Count II"); (3) possession or attempted possession of firearms in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) and 924(c)(1)(B)(ii) ("Count III"); and (4) possession of firearms by an illegal alien in violation of 18 U.S.C. § 922(g)(5) ("Count VII"). Additionally, Dritan and Shain Duka were charged with possession of machineguns in violation of 18 U.S.C. § 922(o). The Dukas pled not guilty and went to trial. A jury found Dritan and Shain Duka guilty of the following: (1) conspiracy to murder members of the United States military, (2) possession or attempted possession of firearms in furtherance of a crime of violence; (3) possession of machineguns; and (4) possession of firearms by an illegal alien. . . .The jury found the Dukas not guilty of attempt to murder members of the United States military.

Duka v. United States, No. 13-3664, 2015 WL 5768786, at *1-3 (D.N.J. Sept. 30, 2015). Petitioners received identical sentences; namely: (1) life imprisonment on Count I - conspiracy to murder; (2) 120 months imprisonment on the possession of machine guns and possession of firearms by an illegal alien to run concurrently to the life sentence on Count I ; and (3) 360 months imprisonment on the possession of firearms in furtherance of a crime of violence to run consecutively to the life imprisonment sentence on Count I. (See Crim. No. 07-539 ECF 417 &419). The United States Court of Appeals for the Third Circuit affirmed Petitioners judgment of conviction on direct appeal. See Duka, 671 F.3d at 333. The United States Supreme Court denied Petitioners' petition for writ of certiorari on their direct appeals. See Duka v. United States, 567 U.S. 906 (2012).

Petitioners then filed pro se motions to vacate, set aside or correct their sentences pursuant to 28 U.S.C. § 2255. (See No. 13-3664 ECF 1; No. 13-3665 ECF 1). Petitioners (along with Eljvir) filed a counseled joint § 2255 memorandum of law in February 2014 raising seven claims. (See No. 13-3664 ECF 13; No. 13-3665 ECF 13). On September 30, 2015, Petitioners' claims were denied except for their ineffective assistance of counsel claim related to a purported...