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Hanif v. Stewart

United States District Court, S.D. Alabama, Southern Division

March 1, 2018

REHAN HANIF, Petitioner,
v.
CYNTHIA STEWART, Respondent.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Rehan Hanif (“Hanif”), an Alabama prisoner[1] proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 21).[2] The Respondent, through the Office of the Attorney General of the State of Alabama, has timely filed an Answer to the Petition (Doc. 30), with exhibits (Doc. 32) and Hanif has timely filed a reply to each (Docs. 31, 34). On October 20, 2017, pursuant to the Court's Order, Respondent filed an amended answer and additional exhibits. (Docs. 43-44). Hanif subsequently filed a reply styled as a request for the Court to take judicial notice. (Doc. 45). Hanif's habeas petition is now under submission and is ripe for disposition.

         Under S.D. Ala. GenLR 72.2(b), the petition has been referred to the undersigned Magistrate Judge for entry of a recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Rule 8(b) of the Rules Governing § 2254 Cases in the United States District Courts, and S.D. Ala. GenLR 72(a)(2)(R). After reviewing the pleadings, party submissions, and applicable law, the undersigned recommends that no evidentiary hearing is required and that Hanif's petition should be DENIED.

         I.! BACKGROUND

         As detailed herein, the procedural background of this § 2254 proceeding is both layered and complicated. Some of these proceedings were still in progress when Hanif first filed his § 2254 motion in this Court.[3] However, each of these proceedings have now concluded.

         A. Hanif's Original Plea and Subsequent Withdrawal

         In May 2006, the Baldwin County, Alabama Grand Jury indicted Hanif on three charges: (1) soliciting a child by computer in violation of Alabama Code § 13A-6-110 (1975) (since repealed by Act 2009-745 2233, § 9, effective May 22, 2009); (2) attempted solicitation of a child by computer in violation of Ala. Code §§ 13A-6-110 and 13A-4-2; and (3) enticing a child to enter a vehicle, room, house, office, or other place, for immoral purposes in violation of Ala. Code § 13A-6-69. (Doc. 32-2 at 65.) Upon Hanif's motion, the charge of soliciting a child by computer was dismissed because the “child” solicited was actually an undercover adult agent. (Doc. 32-11 at 2-3.) In March 2010, Hanif pled guilty to attempted solicitation of a child by computer. (Id. at 3.) Sentencing was delayed over a year because Hanif left the country. (Id. at 3 n. 1). When he returned, he was sentenced to three year term of imprisonment and ordered to pay various fines and court costs. (Doc. 32-11 at 3.) Hanif did not appeal.

         In January 2012, Hanif filed a petition pursuant to Alabama Rule of Criminal Procedure 32, asserting, inter alia, that the plea was involuntary because trial counsel failed to fully inform him of the immigration consequences of his guilty plea and that the trial court failed to inform of him of various rights during the plea colloquy. (Doc. 32-1 at 127-201; Doc. 32-2 at 2-4.) At the hearing on the petition, the State conceded that there was no transcript of the plea colloquy and no record that Hanif signed a form recognizing that he understood and waived his rights. (Doc. 32-11 at 3.) With the State's acquiescence, the plea was set aside, the third count of the indictment was reinstated, and the case was set for a new trial. (Doc. 32-11 at 3.)

         B. Trial and Direct Appeal

         Before trial, Hanif moved to dismiss the two remaining charges (enticement and attempted solicitation), arguing that under Tennyson v. State, 101 So.3d 1256 (Ala.Crim.App.2012), one cannot be guilty of attempted solicitation of a child or enticing a child where the object of the attempt or enticement is actually an undercover officer who is not a child. (Doc. 32-1 at 12-14.) The motion was denied on September 12, 2012. Jury selection began the same day. (Doc. 32-1 at 23).

         The trial took place on September 13, 2012. (Doc. 32-3 at 151). The Alabama Court of Criminal Appeals summarized the State's evidence as follows:

During trial, the State presented evidence that in April 2006 Hanif used a computer to communicate with an individual that he believed to be a 14-year-old girl in Baldwin County and solicit her to engage in oral sex. Although he believed he was communicating with a 14-year-old girl named “Jennifer” in a chatroom, Hanif was actually communicating with Commander William Cowan of the Gulf Shores police department. Hanif agreed to meet “Jennifer” at a car wash in Gulf Shores. Once Hanif arrived at the car wash, he was arrested. After his arrest, Hanif gave a statement to police admitting that he had agreed to meet “Jennifer” at the car wash to engage in oral sex.

(Doc. 32-11 at 3). The defense rested without presenting any evidence. (Doc. 32-11 at 3). Hanif moved for a judgment of acquittal, which the trial court denied as to the attempted solicitation charge, but granted as to the enticement charge. (Doc. 32-11 at 3). The jury found Hanif guilty of attempted solicitation of a child by computer. (Doc. 32-11 at 5.) Hanif was sentenced to a ten year term of imprisonment and ordered to pay various fines and court costs. (Doc. 32-11 at 5).

         On appeal, Hanif argued (1) that he was prejudiced by an incomplete appellate record; (2) that the crimes of solicitation of a child by computer under Ala. Code § 13A-6-110 and attempt under § 13A-4-2 are incompatible because both solicitation and attempt are “inchoate crimes;” and (3) that the ten year sentence imposed was a vindictive increase over his shorter guilty-plea sentence that was overturned. (Doc. 32-8 at 27-4; Doc. 32-9; Doc. 32-10; Doc. 32-11 at 4-10). In affirming the trial court's judgment, the Alabama Court of Criminal Appeals held that the first and third claims were meritless. (Doc. 32-11 at 8-10). The Alabama Court of Criminal Appeals found that the second claim was not preserved and also questioned whether the third claim was preserved. (Doc. 32-11 at 6-8). Hanif's application for rehearing was overruled on November 1, 2013. (Doc. 32-12; Doc. 32-13). On December 6, 2013, Hanif's petition for writ of certiorari to the Alabama Supreme Court was denied without opinion, and the certificate of judgment issued the same day. (Docs. 32-14, 32-15 and 32-16)).

         C. Hanif's Challenge to the Alabama Department of Corrections' Inmate Classification

         On November 27, 2013, while Hanif's direct appeal was still pending, he filed a petition for writ of certiorari in state circuit court seeking relief from the decision of the Department of Corrections (“DOC”) classifying him as a sex offender, which placed certain restrictions on his confinement, asserting that the decision had violated his due process and equal protection rights under the Fourteenth Amendment. (Doc. 44-1 at 8-22, 30-33). On February 18, 2014, the trial court summarily dismissed the petition. (Id. at 5, 60). The trial court also denied Hanif's motion to reconsider. (Id. at 67-80).

         Hanif appealed[4], arguing (1) that the circuit court abused its discretion by dismissing his petition without a hearing and reasserting; (2) that the classification violated his due process rights because the statute he was convicted under was repealed and because no actual child was involved in his offense; and (3) that the classification improperly prevented him from earning correctional incentive time. (Docs. 44-3 at 14-28; 44-4; 44-5 at 4-11). The Alabama Court of Criminal Appeals affirmed the lower court's dismissal, holding, inter alia, that Hanif did not have a Fourteenth Amendment liberty or property interest in his inmate classification and that the DOC's classification system contains no inherent constitutional invalidity. (Doc. 44-6 at 4-6).[5]

         Hanif filed an application for rehearing, which was overruled. (Docs. 44-7 and 44-8). On February 13, 2015, Hanif's petition for writ of certiorari in the Alabama Supreme Court was denied without opinion, and the certificate of judgment issued the same day. (Docs. 44-9 and 44-10).

         D. Hanif's State Post-conviction Proceedings

         On November 14, 2014, pursuant to Alabama Rule of Criminal Procedure 32, Hanif filed a petition for post-conviction relief challenging his conviction and sentence in the Circuit Court of Baldwin County, Alabama. (Doc. 32-17 at 6-13).[6] Hanif's petition contained eight claims for relief:

(1) ineffective assistance of counsel;
(2) trial court was without jurisdiction to render the judgment or to impose the sentence because the law under which Hanif was charged had been repealed;
(3) Statute §13A-6-110 requires a person to “knowingly” solicit a “child” by computer;
(4) Petitioner was lured, tricked or entrapped by law enforcement officer;
(5) Statute 13A-6-110(a) requires as an element of the offense that the charged conduct be directed at a child under the age of 16;
(6) Unfair and impartial prosecution and trial;
(7) State has illegally spoiled the evidence which was in favor of petitioner; and
(8) The state unconstitutionally over broadened the essential element of the statute § 13A-6-110 by adding the mental state of accused at the time of the alleged offense.

(Doc. 32-17 at 20-76). On December 10, 2014, prior to the filing of a response to the petition by the State, the Baldwin County Circuit Court entered an order holding that claims 4, 6, and 7, were precluded because they could have been raised at trial and/or on appeal. The state court further concluded that claims 1, 4, 6, and 7 were precluded because the petition was untimely. (Doc. 32-17 at 81-82). The state court then ordered the State to respond to the remaining claims (2, 3, 5, and 8). (Id.) On December 22, 2014, Hanif filed a motion to alter, amend, or vacate the order, asserting that he had filed the petition within the applicable one-year statute of limitations. On January 14, 2015, the state court denied the motion. (Doc. 32-17 at 84-88). On January 9, 2015, the State filed a response to the remaining claims, asserting that claims 3 and 5 could have been raised at trial and were therefore precluded and that claims 2 and 8 were raised at trial and were meritless. (Doc. 32-17 at 102-03).

         On October 8, 2015, after a hearing, the state court dismissed the Rule 32 petition, dismissing claims 1, 4, 6, and 7 based on the grounds detailed in its previous order and that claims 2, 3, 5, and 8 were not jurisdictional and were untimely. (Doc. 32-17 at 117). On October 19, 2015, Hanif appealed the dismissal of the Rule 32 petition to the Alabama Court of Criminal Appeals, asserting that his petition was timely and that he had raised meritorious claims. (Doc. 32-18 at 14-35).[7]

         In response, the State asserted that the record did not contain either the trial court's order granting Hanif in forma pauperis (“IFP”) status or evidence that Hanif paid the requisite filing fee and, therefore, it was likely that the court lacked jurisdiction to rule on the Rule 32 petition which was the subject of the appeal. (Doc. 32-19 at 19-21). The State requested that the appeal be remanded to the state court for a determination as to jurisdiction and if no jurisdiction existed, to dismiss the appeal. (Doc. 32-19 at 27). The State additionally conceded that the state court erred in finding Hanif's Rule 32 petition untimely, but urged that all of Hanif's claims asserted in his Rule 32 petition, except one (ineffective assistance of counsel) had been waived. (Id. at 21-28). Hanif replied by stating that he had been granted IFP status and that he had not abandoned any of his claims on appeal. (Doc. 32-20 at 4-11).

         On March 16, 2016, the Alabama Court of Criminal Appeals issued an order remanding the case to the trial court for a determination as to whether Plaintiff had been granted IFP status or paid the filing fee. (Doc. 32-21 at 1-2). It further ordered that the case be set aside pending further order by the court. (Id. at 2).

         On April 18, 2016, the Baldwin County Circuit Court issued an order stating that it had granted Hanif in forma pauperis status prior to dismissing the petition. (Doc. 44-11 at 8). On May 23, 2016, the Alabama Court of Criminal Appeals ordered that the case be remanded a second time for the trial court to consider the merits of Hanif's claim that he was denied effective assistance of counsel by trial counsel's failure to inform him of his right to testify. (Doc. 44-12).

         On July 13, 2016, the trial court held a hearing on Hanif's petition. (Doc. 44-14 at 13, 39). The Baldwin County Circuit Court found that Hanif was unable to appear at the hearing because he was in federal custody awaiting deportation and that there was no mechanism for obtaining his presence. (Id. at 13). The court found that Hanif did not provide any affidavits, written interrogatories, or depositions in support of his claims, that Hanif was not deprived of effective assistance of counsel, and that Hanif's statement denying culpability was presented to the jury, “in essence allowing him to testify without having to be cross examined.” (Id.).

         “On Return to Second Remand, ” the Alabama Court of Criminal Appeals affirmed the trial court's decision. (Doc. 44-14). The court assumed without deciding that trial counsel failed to inform Hanif of his right to testify and that this failure constituted deficient performance, Hanif still failed to show that he was prejudiced by this failure. (Id. at 5-6.) It noted that the written statement Hanif gave to police following his arrest was admitted into evidence, wherein Hanif claimed that he believed the female he was communicating with in the computer chat room was above twenty-one years old based on the picture in her profile. (Id. at 6-7.) It therefore held that the evidence Hanif would have presented by testifying was effectively presented to the jury without his having to take the stand and that Hanif could not show that his testimony would have changed the result. (Id. at 7).

         The Alabama Court of Criminal Appeals also held that Hanif's other claim of ineffective assistance, which alleged that trial counsel failed to call Officer Janelle White, the female officer with whom Hanif had communicated on the phone, as a witness. (Id. at 7.) Hanif argued that her testimony would have established that she was adult, which would have undermined any inference that he had the intent to solicit a child. (Id.) The appellate court noted that another officer testified at trial that Officer White was “an adult, over 16, and married.” (Id.). As such, it failed that he could not establish any prejudice from the failure to call Officer White. (Id.)

         The appellate court also rejected Hanif's claim that the trial court lacked jurisdiction to impose the sentence because the statute he was convicted under, § 13A-6-110 of the Code of Alabama, was repealed in 2009, prior to his conviction (claim 2 in the petition). (Id. at 7-10.) The court noted that § 13A-6-110 was simultaneously repealed and replaced with § 13A-6-122 of the Code of Alabama, which was substantially similar and therefore should be construed as a continuation of the offense rather than an implicit repeal. (Id. at 9-10).

         The appellate court held that Hanif's claim that his indictment improperly expanded the mental state required for the commission of the offense was procedurally barred because it could have been, but was not, raised on appeal. (Id. (citing Ala. R. Crim. P. 32.2(a)(5)).) The appellate court held that, because Hanif reasserted only these three claims from his petition in his appellate brief, he had abandoned the other five claims. (Id. at 4). It also found that Hanif had raised claims on appeal that were not in his petition and that those claims were not preserved for review. (Id.).

         On December 19, 2016, Hanif filed an application for rehearing, which was overruled. (Docs. 44-15, 44-16). He then filed a petition for writ of certiorari in the Alabama Supreme Court, which only addressed the three claims he raised before the Alabama Court of Criminal Appeals. (Doc. 44-17). On March 17, 2017, the petition was denied without opinion and the certificate of judgment issued the same day. (Doc. 44-18).

         E. Hanif's 28 U.S.C. § 2254 Petition 1.! In Custody Requirement

         Hanif's original petition was filed on or about March 11, 2015, and was amended on December 22, 2015. (Docs. 1, 21). At the time Hanif filed his petition, he was in the custody of the State of Alabama. (Doc. 1). However, sometime in June 2015, he was released from the State of Alabama's custody and was placed in the custody of Immigration and Customs Enforcement (“ICE”).

         A federal district court may entertain a petition for writ of habeas corpus under 28 U.S.C. § 2254 only if the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). This “in custody” requirement is jurisdictional. Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d 401, 403 (11th Cir. 1988). To satisfy the “in custody” requirement, “the habeas petitioner [must] be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989). A person is “in custody pursuant to the judgment of a State court” if the state court sentence has not fully expired. Jones v. Cunningham, 371 U.S. 236, 242 (1963) (petitioner on parole was “in custody, ” even though not physically confined).

         Though Hanif is no longer “in custody” of the State of Alabama, he was in its custody at the time his petition was filed. Thus, he satisfies the § 2254 custody requirement.

         2. Mootness

         Hanif reported that he “has been in transition stage of his removal from the United States” but it is unclear from the record whether he remains in the custody of the United States or has been deported. (Doc. 40). Article III of the Constitution, known as the case and controversies limitation, prevents federal courts from deciding moot questions because the Court lacks subject matter jurisdiction. U.S. Const. art. III, § 2; Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1327 (11th Cir. 2004). Mootness can occur due to a change in circumstances or a change in law. Id. at 1328. A case is also moot when the issue presented is no longer live, the parties lack a legally cognizable interest in its outcome, or a decision could no longer provide meaningful relief to a party. Troiano v. Supervisor of Elections in Palm Beach County, Fla., 382 F.3d 1276, 1282 (11th Cir.2004) (citing Al Najjar v. Ashcroft, 273 F.3d 1330, 1335-36 (11th Cir. 2001)). Dismissal is not discretionary but “is required because mootness is jurisdictional. Any decision on the merits of a moot case or issue would be an impermissible advisory opinion.” Id. The fact of deportation, alone, is not sufficient to render a claim automatically moot. See Sibron v. New York, 392 U.S. 40, 54-56 (1968). Rather, whether a habeas petition presents a case or controversy hinges on whether the petitioner suffers “collateral consequences” as a result of the conviction he challenges. Spencer v. Kemna, 532 U.S. 1, 7 (1998); Maggard v. Florida Parole Comm., 616 F.2d 890, 891 (5th Cir.1980) (citations omitted).[8]

         Hanif states

Petitioner was lawful permanent resident of United States and has U.S born citizen wife and minor son living in United States but due to petitioner's underlying wrongful conviction he is facing removal proceeding by Immigration and Custom Enforcement (ICE). On October 18[, ] 2016, Immigration Court at Oakdale, Louisiana ordered petitioner removed from United States due to petitioner's one and only conviction from Circuit Court of Baldwin County, Alabama which he is attacking in this Honorable Court and Alabama Appeal Court….petitioner's wrongful conviction…is the only basis for his removal proceeding…

(Doc. 35 at 1-2). In a similar context, the Southern District of Florida has observed:

A habeas petition becomes moot once the petitioner is released from custody unless the petitioner can show some sufficient collateral consequence of the underlying proceeding. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Several circuits have held that the ten year bar on readmission to the United States of a removed alien under 8 U.S.C. 1182(a)(9) is a sufficient enough collateral consequence that a habeas petition remains a live controversy even after a petitioner's release, and even after the prisoner's deportation. Leitao v. Reno, 311 F.3d 453, 456 (1st Cir.2002) (collecting cases); see also Smith v. Ashcroft, 295 F.3d 425, 428 (4th Cir.2002) (“[T]hough Smith is no longer in the United States, he is unmistakably affected by the legal implications of our decision. If he prevails, there is a possibility he can beneficially unravel his untoward immigration status.”).
In Leito, the First Circuit found that a habeas petitioner who faced a permanent bar on readmission to the country also faced a collateral consequence that presented a live controversy, even though he had been released from prison. 311 F.3d at 456. Abuchar's case has similar collateral consequences. He claims he is now subject to automatic deportation as a result of ineffective assistance of counsel. This type of collateral consequence is enough to make Abuchar's habeas petition a live controversy, even if he has been released from prison. In addition, based on the original sentence in this case, it appears that Abuchar is still on supervised release. [CR-ECF No. 19, pp. 3-4]. The Eleventh Circuit has held that a habeas petition filed by a prisoner in custody is not mooted by his subsequent release where the petitioner is still serving his term of supervised release, which involves “some restrictions upon his liberty.” Dawson v. Scott 50 F.3d 884, 886 n. 2 (11th Cir.1995).

Abuchar v. United States, No. 10-20779-CR, 2014 WL 5810688, at *6-7 (S.D. Fla. Nov. 7, 2014). Upon consideration, the undersigned finds that even if Hanif has been deported, his conviction in the underlying action for which he seeks habeas relief, has subjected him to deportation which may serve as a collateral consequence, thus his petition is not moot.

         3. Summary of Claims

         Hanif's amended habeas petition alleges the following grounds for relief:

(1) that the trial court lacked jurisdiction to convict and sentence him for attempted soliciting a child by computer because Ala. Code. § 13A-6-110 (1975) was subsequently repealed;
(2) that it is an essential element of the crime that an actual child be involved and the “child” was actually an undercover police officer;
(3) that he did not knowingly attempt to solicit a child by a computer because the undercover officer was not actually a child and also because he believed that the “child” he was communicating with ...

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