Al-'Owhali v. United States

36 F.4th 461

Mohamed Rashed Daoud AL-’OWHALI, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.^*

No. 20-3174

August Term 2021

United States Court of Appeals, Second Circuit.

Submitted: February 28, 2022

Decided: June 8, 2022

Mohamed Rashed Daoud Al-’Owhali, pro se, Marion, IL, for Petitioner-Appellant.

Stephen J. Ritchin, Won S. Shin, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Respondent-Appellee.

Before: Walker, Menashi, and Lee, Circuit Judges.

Menashi, Circuit Judge:

On August 7, 1998, Petitioner-Appellant Mohamed Rashed Daoud Al-’Owhali and a team of al Qaeda operatives conducted simultaneous bombings of the American embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The attacks killed 224 people— including twelve Americans—and wounded thousands. Al-’Owhali was arrested, transported to the United States, and indicted. In 2001, a federal jury convicted Al-’Owhali of 266 counts for his role in the bombings. The district court subsequently sentenced Al-’Owhali to 264 concurrent life terms of imprisonment, to be followed by a consecutive 10-year term of imprisonment, in turn to be followed by a consecutive 30-year term of imprisonment. He has since been serving his 264 life sentences.

In this appeal, Al-’Owhali challenges only one of his 266 convictions. Al-’Owhali seeks to vacate his conviction for using an explosive device during a crime of violence in violation of 18 U.S.C. § 924(c), which yielded the 30-year sentence that is to follow his other terms of imprisonment. He asserts that the conviction's predicate offense no longer qualifies as a "crime of violence" following the decision of the Supreme Court in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). We need not and do not reach the merits of this challenge.

We hold that a court may exercise its discretion under the concurrent sentence doctrine to decline to review the merits of a claim on collateral review when the challenged conviction's sentence runs consecutively to one or more unchallenged life sentences. We exercise such discretion here and decline to review Al-’Owhali's claim for two reasons. First, Al-’Owhali's claim will not afford him any actual sentencing relief. Because he does not challenge his 264 life sentences, even a complete vacatur of his § 924(c) conviction will not reduce the time he serves in prison. Second, leaving the § 924(c) conviction unreviewed will not yield any adverse collateral consequences.

Accordingly, we affirm the judgment of the district court without prejudice to Al-’Owhali renewing his claim in the event that he is later authorized to challenge the validity of his 264 life sentences.

BACKGROUND

I

Al-’Owhali joined al Qaeda in 1996 and volunteered to participate in a mission. He was tasked with bombing the American embassy in Nairobi, Kenya. Al-’Owhali filmed a video claiming responsibility for the bombing in advance, and he then traveled to Nairobi to carry it out. Between his arrival on August 2, 1998, and the attack on August 7, 1998, Al-’Owhali and his co-conspirators finalized the logistics of the attack, surveilled the embassy, and oversaw the wiring of the bomb.

On August 7, 1998, Al-’Owhali was the sole passenger in the truck that delivered the bomb to the embassy. As the truck approached the embassy, Al-’Owhali exited and threw a stun grenade at the embassy guards to clear a path for the truck. After the bomb was in place, Al-’Owhali fled and the bomb detonated.¹ The resulting explosion destroyed part of the embassy and an adjacent building, killing 213 and wounding thousands. Shortly thereafter, American and Kenyan authorities arrested Al-’Owhali and transported him to the United States.

On May 29, 2001, a jury in the Southern District of New York convicted Al-’Owhali of 266 counts for his role in the bombings, including 213 counts of murder during an attack on a federal facility in violation of 18 U.S.C. § 930(c), one count of destroying federal property with explosives resulting in death in violation of 18 U.S.C. § 844(f)(3), and one count of using an explosive device during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c).² The § 844(f)(3) conviction served as the predicate crime of violence for the § 924(c) conviction.

Because the jury did not unanimously conclude that Al-’Owhali's capital convictions warranted the death penalty, the district court (Sand, J.) sentenced Al-’Owhali to the terms of imprisonment mandated by statute. Al-’Owhali received 264 concurrent life sentences, to be followed by a consecutive 10-year term of imprisonment, which in turn would be followed by a consecutive 30-year term of imprisonment for his § 924(c) conviction. We affirmed Al-’Owhali's convictions and sentences on direct appeal.³

II

This appeal arises from the interaction of Al-’Owhali's § 924(c) conviction and the decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019).⁴ In Davis , the Supreme Court held that the residual clause of 18 U.S.C. § 924(c)(3)(B) —which defined "crime of violence" to include any felony "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense"—was unconstitutionally vague. 139 S. Ct. at 2336. Davis followed two other decisions in which the Court held similar language to be impermissibly vague. See Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1210-11, 200 L.Ed.2d 549 (2018) (addressing the federal criminal code's definition of "crime of violence" in 18 U.S.C. § 16(b) ); Johnson v. United States , 576 U.S. 591, 593-94, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (addressing the Armed Career Criminal Act's definition of "violent felony" in 18 U.S.C. § 924(e)(2)(B)(ii) ).⁵

Following Davis , Al-’Owhali filed a motion pursuant to 28 U.S.C. § 2255 to vacate his § 924(c) conviction on the ground that the predicate § 844(f) conviction for using an explosive device to destroy federal property no longer qualifies as a "crime of violence" under the statute. Al-’Owhali argued that vacatur of the § 924(c) conviction would warrant vacatur of and de novo resentencing on his 265 other convictions.

The district court (Kaplan, J.) denied Al-’Owhali's § 2255 motion and declined to issue a certificate of appealability. See Al-’Owhali v. United States , No. 20-CV-0832, 2020 WL 4194635, at *2 (S.D.N.Y. July 21, 2020). The district court held that Al-’Owhali had cause to bring his procedurally defaulted claim because he was convicted "long before Davis was decided" and an earlier challenge based on § 924(c)'s definition of "crime of violence" would have "failed at the time under controlling Second Circuit precedent." Id. at *1 & n.2 (citing United States v. Barrett , 903 F.3d 166, 175 (2d Cir. 2018) ). However, the district court held that Al-’Owhali failed to show "the actual prejudice required to overcome his procedural default." Id. at *1. A panel of this court granted Al-’Owhali's motion for a certificate of appealability.

DISCUSSION

We review de novo a district court's denial of a motion under § 2255 to vacate, set aside, or correct a sentence. Kassir v. United States , 3 F.4th 556, 561 (2d Cir. 2021). A § 2255 motion challenges the prisoner's being in custody, and relief may be afforded only when the prisoner claims "the right to be released." 28 U.S.C. § 2255(a).⁶ If the challenged sentence "was not authorized by law," we will correct it "as may appear appropriate." Id. § 2255(b).

The government argues that we should decline to review Al-’Owhali's claim pursuant to the concurrent sentence doctrine.⁷

We therefore consider whether a court has discretion under that doctrine to decline to review a claim on collateral review when the challenged conviction's sentence runs consecutively, not concurrently, to one or more unchallenged life sentences. We conclude that the concurrent sentence doctrine allows for such discretion, and we exercise that discretion to decline to review Al-’Owhali's claim here.

I

Under the concurrent sentence doctrine, a court may decline to consider a challenge to a "conviction for which an appellant's sentence runs concurrently with that for another, valid conviction." United States v. Vargas , 615 F.2d 952, 956 (2d Cir. 1980) ; see also Duka v. United States , 27 F.4th 189, 194 (3d Cir. 2022) ("The concurrent sentence doctrine allows a court the discretion to avoid resolution of legal issues affecting less than all of the counts in an indictment where at least one count will survive and the sentences on all counts are concurrent.") (internal quotation marks and citation omitted). The doctrine "authorizes a court to leave the validity of one concurrent sentence unreviewed when another is valid and carries the same or greater duration of punishment." United States v. Charles , 932 F.3d 153, 155 (4th Cir. 2019).

The doctrine is a "rule of judicial convenience," Kassir , 3 F.4th at 561 (quoting Benton v. Maryland , 395 U.S. 784, 791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) ), that conserves judicial resources when, "regardless of the outcome, the prisoner will remain in jail for the same length of time," Benton , 395 U.S. at 799, 89 S.Ct. 2056 (White, J., concurring). As a "species" of "harmless-error analysis," it allows a court to "avoid unnecessary adjudication of issues and unnecessary pronouncements of law" by reserving "judgment only for issues that, once resolved, have some practical effect." Kassir , 3 F.4th at 564-65.

The doctrine does not provide unlimited discretion. In Ray v. United States , the Supreme Court held that three convictions were not concurrent because each imposed a separate monetary penalty; given that each conviction affected the petitioner's total "liability to pay," a court could not apply the doctrine to decline to review one of those convictions. 481 U.S. 736,...