United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.
Rehan Hanif (“Hanif”), an Alabama
prisoner proceeding pro se, has filed a
Petition for Writ of Habeas Corpus under 28 U.S.C. §
2254 (Doc. 21). 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.
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
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. However, each of
these proceedings have now concluded.
Hanif's Original Plea and Subsequent Withdrawal
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repealed by Act 2009-745 2233, § 9, effective May 22,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.
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.)
Trial and Direct Appeal
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).
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).
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)).
Hanif's Challenge to the Alabama Department of
Corrections' Inmate Classification
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).
appealed, 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
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).
Hanif's State Post-conviction Proceedings
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). 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
(4) Petitioner was lured, tricked or entrapped by law
(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).
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
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).
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).
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.
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.).
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).
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
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).
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.).
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).
Hanif's 28 U.S.C. § 2254 Petition 1.! In
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
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).
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
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
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
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.
Summary of Claims
amended habeas petition alleges the following grounds for
(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
(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 ...