Rezaq v. Sproul

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

OMAR MOHAMMED REZAQ, )

)

Petitioner, )

)

vs. ) Case No. 23-cv-03189-DWD

)

DANIEL SPROUL, )

)

Respondent. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Petitioner Omar Mohammed Rezaq, who is currently incarcerated at USP-Marion,

filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). Petitioner

challenges the United States Parole Commission’s decision denying his request for

mandatory parole pursuant to 18 U.S.C. § 4205(d) (Doc. 1). Petitioner is represented by

counsel, but also seeks leave to proceed in forma pauperis (Doc. 3). The Petition is now

before the Court for preliminary review pursuant to Rule 4 of the Rules Governing

Section 2254 Cases in United States District Courts.1 Rule 4 provides that upon

preliminary consideration by the district court judge, “[i]f it plainly appears from the

petition and any attached exhibits that the petitioner is not entitled to relief in the district

court, the judge must dismiss the petition and direct the clerk to notify the petitioner.”

Discussion

1 Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus cases,

such as this action under 28 U.S.C. § 2241.

On October 7, 1996, Petitioner was sentenced to life imprisonment after a jury

found Petitioner guilty of air piracy resulting in death, in violation of 49 U.S.C. § 1472(n)

(1994)2 (Doc. 1, p. 3); see also Rezaq, 134 F.3d 1121. The acts underlying his conviction

occurred in 1985, when Petitioner, a foreign nationalist, was a member of a Palestinian

terrorist organization. Rezaq, 134 F.3d at 1126. As detailed by the United States Court of

Appeals for the District of Columbia, in the evening of November 23, 1985, Petitioner,

along with two others, boarded Air Egypt Flight 648 in Athens and hijacked an airplane.

Id. After the plane arrived in Malta, Petitioner demanded that the aircraft be refueled

and threatened to shoot a passenger every fifteen minutes until his demand was met. Id.

Petitioner carried out his threat, killing multiple victims. Id. In the evening of November

24th, nearly one day after the hijacking began, Egyptian commandos stormed the plane

in what the Appellate Court described as a “seemingly incompetent” operation where

commandos fired indiscriminately, setting off an explosive device, and causing the

aircraft to burst into flames. Id. A total of fifty-seven passengers were killed, in addition

to two of the hijackers. Id.

2 This section has been amended, but at the time of Petitioner’s prosecution, provided:

(1) Whoever aboard an aircraft in flight outside the special aircraft jurisdiction of the

United States commits an “offense,” as defined in the Convention for the Suppression of

Unlawful Seizure of Aircraft, and is afterward found in the United States shall be

punished—

(A) by imprisonment for not less than 20 years; or

(B) if the death of another person results from the commission or attempted commission

of the offense, by death or by imprisonment for life.

(2) A person commits ‘an offense,’ as defined in the Convention for the Suppression of

Unlawful Seizure of Aircraft, when, while aboard an aircraft in flight, he—

(A) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or

exercises control of, that aircraft, or attempts to perform any such act; or

(B) is an accomplice of a person who performs or attempts to perform any such act.

United States v. Rezaq, 134 F.3d 1121, 1127 (D.C. Cir. 1998).

Authorities in Malta charged Petitioner with murder, attempted murder, and

hostage taking. Id. Petitioner pled guilty and was sentenced to 25 years’ imprisonment.

Maltese authorities released Petitioner seven years later, in February 1993, and allowed

him to board a plane to Ghana. Id. Petitioner eventually proceeded to Nigeria, where

Nigerian authorities placed Petitioner in the custody of FBI agents, who then transported

Petitioner to the United States where he was found guilty of air piracy. Id. Petitioner did

not challenge the hijacking at trial, but instead invoked the defenses of insanity and

obedience to military orders. Id.

Petitioner has not previously filed a post-conviction petitioner, and is presently

incarcerated in this District at USP Marion (Doc. 1, p. 3). Petitioner alleges that he is

eligible for parole pursuant to the Parole Commission and Reorganization Act of 1976

(“PCRA”), 18 U.S.C. § 4201-4218 (Doc. 1, p. 3). The PCRA of 1976 was repealed by the

Sentencing Reform Act of 1984, but remains in force for persons, like Petitioner, whose

crimes occurred before November 1, 1987. See Von Kahl v. Segal, 19 F.4th 987, 988 (7th Cir.

2021). Petitioner argues that he is entitled to mandatory release under Section 4206(d),

which sets a presumptive cap on how long a prisoner must serve a sentence:

Any prisoner, serving a sentence of five years or longer, who is not earlier

released under this section or any other applicable provision of law, shall

be released on parole after having served two-thirds of each consecutive

term or terms, or after serving thirty years of each consecutive term or terms

of more than forty-five years including any life term, whichever is earlier:

Provided, however, That the Commission shall not release such prisoner if it

determines that he has seriously or frequently violated institution rules and

regulations or that there is a reasonable probability that he will commit any

Federal, State, or local crime.

18 U.S.C. § 4206(d). “Section 4206(d) illustrates one of the ways in which the 1987 Act

changed federal sentencing. Today a person sentenced to life in prison serves life in

prison, unless clemency or compassionate release intervenes. But a person sentenced to

“life” under older law was eligible for parole in ten years, § 4205(a)—sooner if the

judgment so provided under § 4205(b)(2)—and is presumptively entitled to parole after

thirty, § 4206(d).” Von Kahl, 19 F.4th at 988.

Petitioner avers that his mandatory parole date was July 15, 2023 (Doc. 1, p. 5), but

that he was wrongfully denied parole by the United States Parole Commission following

a hearing held on February 28, 2023 (Doc. 1, p. 5). Petitioner raises six grounds for relief

concerning the Commission’s decision, including:

One: The Commission erred in predominately relying on the nature

and circumstances of the underlying offense;

Two: The Commission erred in citing two minor infractions in

support of its reasonable probability finding;

Three: The Commission’s uninformed speculation that Petitioner’s

“temperament and character” had not changed since 1984 ignores the

overwhelming evidence otherwise, is inconsistent with the premise of §

4602(d), and unreasonably discounts both social science research directly

relevant to Petitioner and the BOP’s expert-driven risk analysis;

Four: The Commission considered an improper factor when it found

Petitioner has not served a sufficient amount of time for his offense;

Five: Absent its consideration of improper factors the Commission

cited no evidence that could rationally support a finding of reasonable

probability; and

Six: The Commission violated 18 U.S.C. § 4208(b)(2) when it failed to

disclose a letter from the Department of Justice it received four days before

the mandatory parole hearing.

(Doc. 1, pp. 2-3). Because of these errors, Petitioner seeks a writ of habeas corpus ordering

Respondent to transfer his custody to the Director of Homeland Security to effectuate his

deportation from the United States (Doc. 1, p. 5).

28 U.S.C. § 2241 petitions challenge “the fact or duration of confinement”, or the

execution of a sentence, rather than the imposition of a sentence. Hill v. Werlinger, 695

F.3d 644, 645 (7th Cir. 2012) (citing Walker v. O'Brien, 216 F.3d 626, 629 (7th Cir. 2000));

Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). Section 2241 is also the “appropriate

means to contest the Bureau of Prisons’ calculation of the date on which a prisoner must

be released”, Von Kahl, 19 F.4th at 989, and for challenging a final determination made by

the Parole Commission. See Romano v. Baer, 805 F.2d 268 (7th Cir. 1986) (2241 petition

appropriate method to challenge decision of Parole Commission to continue petitioner

beyond term provided by parole guidelines); see also Lewis v. U.S. Parole Comm'n, 132 F.

App'x 659, 660 (7th Cir. 2005) (unpublished) (finding arguments concerning the

Commission’s miscalculation of parole date was properly brought under § 2241) (citing

Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997) (challenges to the computation of a

sentence must be brought under 28 U.S.C. § 2241). Accordingly, Petitioner’s 2241

challenge to the Parole Commission’s decision denying his request for mandatory parole

survives preliminary review.

IT IS HEREBY ORDERED that Respondent Daniel Sproul shall answer or

otherwise respond to the Petition (Doc. 1) by November 20, 2023. This preliminary order

to respond does not preclude Respondent from raising any objection or defense

Respondent may wish to present. Service upon the United States Attorney for the

Southern District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois, shall constitute

sufficient service. Petitioner is ADVISED of his continuing obligation to keep the Clerk

(and each opposing party) informed of any change in his whereabouts during the

pendency of this action. This notification must be done in writing and no later than 7 days

after a transfer or other change in address occurs. Failure to provide notice may result in

dismissal of this action. See Fed. R. Civ. P. 41(b).

Finally, Petitioner’s Motion to Proceed in forma pauperis (Doc. 3) is DENIED. Two

issues must be resolved before in forma pauperis status can be granted: the plaintiff must

show that he is indigent by submitting an affidavit "that includes a statement of all assets

[he] possesses [showing] that [he] is unable to pay such fees or give security therefor,"

and the plaintiff's complaint must not be clearly frivolous or malicious. 28 U.S.C. §

1915(a)(1). Here, the Court questions Petitioner’s claim of indigency. In his affidavit,

Petitioner states that he currently has the sum of $374.04 in his prison trust fund account,

and receives $55.50 in gross pay or wages each pay period (Doc. 3). The current fee for

habeas corpus filings is $5.00. Accordingly, based on a review of Petitioner’s trust fund

statement and the statements in his affidavit, the Court finds that Petitioner is not

indigent and can pay the $5.00 filing fee for this case.

SO ORDERED.

Dated: October 24, 2023 /s David W. Dugan

_____________________________

DAVID W. DUGAN

United States District Judge