United States District Court, S.D. Alabama, Southern Division
RASSAN M. TARABEIN, # 16872-003, Petitioner,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
F. BIVINS, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Petitioner Rassan M.
Tarabein's “Motion to Dismiss Petitioner's 28
U.S.C. § 2255 Motion Without Prejudice Due to Lack of
Jurisdiction.” (Doc. 166). This action was referred to
the undersigned Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
Rule 8(b) of the Rules Governing Section 2255 Cases. Having
carefully reviewed the record, the undersigned recommends
that Tarabein's motion to dismiss (Doc. 166) be granted,
and that Tarabein's Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 (Doc. 157) be
DISMISSED without prejudice, because it is
28, 2017, Petitioner Rassan M. Tarabein was charged in a
twenty-two-count superseding indictment with health care
fraud and distributing controlled substances for no
legitimate medical purpose. (Doc. 10). On August 31, 2017,
Tarabein pleaded guilty to counts one (health care fraud) and
eighteen (unlawful distribution of controlled substances) of
the superseding indictment, pursuant to a counseled plea
agreement. (Doc. 83). On June 8, 2018, Tarabein was sentenced
to two concurrent terms of sixty months' imprisonment,
one year of supervised release, and restitution. (Doc. 121).
That same date, a notice of non-appeal, signed by both
Tarabein and his attorney, was filed with the Court. (Doc.
119). On June 20, 2018, the Court entered a judgment
consistent with Tarabein's pronounced sentence, which
included a preliminary order of forfeiture. (Doc. 121). In
the judgment, the Court ordered specifically identified real
and personal property to be forfeited to the United States.
filed a pro se notice of appeal that was signed and
dated August 29, 2018 and docketed on August 31, 2018. (Doc.
127). Tarabein sought to “appeal unfair sentence due to
ineffective counsel . . . .” (Id. at 1). On
September 17, 2018, he filed a motion for leave to proceed
in forma pauperis on appeal, claiming that he was
indigent because of the Government forfeiture of his
property. (Doc. 133). The district court denied
Tarabein's motion for leave to proceed in forma
pauperis on appeal. (Doc. 138). Although the Court
determined that Tarabein was indigent and therefore
financially qualified to proceed in forma pauperis,
the Court found that his appeal was not taken in good faith
because he failed to present a non-frivolous issue for
appeal. (Id.). On October 2, 2018, Tarabein's
retained trial attorneys filed motions to withdraw from the
case (Docs. 134, 135), which the Court granted on October 18,
2018. (Doc. 136, 137).
October 28, 2018, Tarabein filed a motion to reconsider the
district court's denial of his motion for leave to
proceed in forma pauperis on appeal. (Doc. 142).
Tarabein explained that he was not seeking to appeal his
prison term but intended to instead appeal the restitution
and forfeiture provisions in his sentence. (Id.).
Tarabein asserted that those provisions were “never a
part of the Plea Agreement” and that the
“restitution was exaggerated and guessed without
material evidence.” (Id.). On January 3, 2019,
the Court granted Tarabein's motion for reconsideration
and motion to proceed in forma pauperis. (Doc. 143).
The Court held that to the extent Tarabein's appeal of
the restitution and forfeiture provisions did not relate to
his ineffective assistance of counsel claim, the issue on
appeal was not frivolous. (Id.). In a January 11,
2019 trial court memorandum regarding final order of
forfeiture, the United States argued that forfeiture became
final as to Tarabein when he was sentenced in June 2018, and
that by not timely appealing the forfeiture after the entry
of judgment, he was now barred from appealing the forfeiture.
(Doc. 145). In an order dated February 11, 2019, the district
court vacated its order granting Tarabein leave to proceed
in forma pauperis on appeal, finding that
Tarabein's appeal is frivolous because it is untimely and
the United States is unlikely to waive its untimeliness.
8, 2019, the Eleventh Circuit issued an order granting
Tarabein's motion for appointment of counsel in his
direct appeal and denying his motion for leave to proceed
in forma pauperis on appeal as moot because the
“district court has since granted him IFP status based
on his motion for reconsideration, as he demonstrated that he
wished to raise non-frivolous issues on appeal related to his
sentence.” See Order Granting Motion for
Appointment of Counsel, United States v. Tarabein,
No. 18-13743-K, (11th Cir. May 8, 2019). On May 20, 2019,
attorney Patricia Kemp of the Federal Defenders office
entered her appearance as counsel for Tarabein in his direct
appeal. Appearance of Counsel Form, Tarabein, No.
18-13743-K, (11th Cir. May 20, 2019).
13, 2019,  Tarabein, proceeding pro se,
filed the instant Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody Under 28 U.S.C.
§ 2255. (Doc. 157). In his motion, Tarabein alleges that
he received ineffective assistance of counsel when his
retained counsel failed to argue against or object to the
restitution and forfeitures that were a part of his sentence,
and when his counsel failed to file a direct appeal on his
behalf as instructed. (See id.). The Court entered a
briefing order on Tarabein's § 2255 motion, ordering
the Government to file a response by July 29, 2019. (Doc.
164). On June 13, 2019, Tarabein, through his appointed
counsel, Patricia Kemp, filed a “Motion to Dismiss
Petitioner's 28 U.S.C. § 2255 Motion Without
Prejudice Due to Lack of Jurisdiction.” (Doc. 166).
Tarabein's motion to dismiss asserts that when the
Eleventh Circuit docketed his direct appeal in March 2019,
this Court lost jurisdiction over Tarabein's case, and
that the proper course of action for addressing a § 2255
motion filed during the pendency of a direct appeal is to
dismiss the § 2255 action without prejudice.
(Id. at 1). Accordingly, Tarabein requests that the
Court dismiss his § 2255 habeas petition without
prejudice “because of this Court's lack of
limited scope of habeas relief is well-established, as this
Court has recognized:
Collateral relief is an extraordinary remedy which “may
not do service for a [direct] appeal.” United
States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71
L.Ed.2d 816 (1982); see also Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004) (“Courts have long
and consistently affirmed that a collateral challenge, such
as a § 2255 motion, may not be a surrogate for a direct
appeal.”). A defendant who has waived or exhausted his
right to appeal is presumed to stand “fairly and
finally convicted.” Frady, 456 U.S. at 164.
Unless a claim alleges a lack of jurisdiction or
constitutional error, the scope of collateral attack has
remained extremely limited. United States v.
Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d
805 (1979). Consequently, “[i]f issues are raised and
considered on direct appeal, a defendant is thereafter
precluded from urging the same issues in a later collateral
attack. . . . A defendant is, of course, entitled to a
hearing of his claims, but not to duplicate hearings. The
appellate process does not permit reruns.” Moore v.
United States, 598 F.2d 439, 441 (5th Cir. 1979).
United States v. Evans, 2008 U.S. Dist. LEXIS 59836,
at *8-9, 2008 WL 3200694, at *3 (S.D. Ala. Aug. 6, 2008)
(quotation marks in original).
state a claim for relief under 28 U.S.C. § 2255, a
petitioner must show that one of the following occurred: (1)
“the sentence was imposed in violation of the
Constitution or laws of the United States, ” (2)
“the court was without jurisdiction to impose such
sentence, ” or (3) “the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack[.]” 28 U.S.C. § 2255(a). Section
2255 further requires that a federal prisoner file a §
2255 motion to vacate his sentence within one year of,
inter alia, the date his judgment of conviction
becomes final. 28 U.S.C. § ...