Appendix — Ray v. Florida Bar
Supreme Court brief2002
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No.
IN THE SUPREME COURT OF THE UNITED STATES
GURMEET SINGH DHINSA,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Wnit of Certiorari to the
United States Court of Appeals For The Second Circuit
(2nd Circuit No. 04-0427)
Circuit Court Judges: Cabranes, Straub and Wesley
PETITION FOR WRIT OF CERTIORARI
APPENDIX
BARRY A. KOZYRA, ESQ.
Counsel of Record and On the Brief
RAJ GADHOK, ESQ.
On the Brief
KOZYRA & HARTZ, LLC
Attorneys for Petitioner
140 Eagle Rock Avenue
Roseland, New Jersey 07068
973-403-8344
973-403-9652 (Telefacsimile)
Table of Contents
Page
Order of the U.S. Court of Appeals for the
Second Circuit dated August 26, 2004 A-1
Memorandum and Order of Edward R.
Korman, U.S.C.D.J dated December 31, 2003 A-3
Judgment dated January 6, 2004 A-8
Order and Judgment of the U.S. District
Court Central District of California Filed
September 23, 2002 A-9
Petition For Writ of Habeas Corpus Filed
September 16, 2002 A-13
Exhibit A to Petition A-22
Certification of Gurmeet Singh
Dhinsa dated September 7, 2002
Motion to Vacate Conviction and Sentence and
Remand for New Trial Filed November 18, 2002 A-26
Certification of Barry A. Kozyra in support
of Motion Filed November 18, 2002 A-29
Exhibit A to Kozyra Certification A-35
Final Judgment and Order
Exhibit B to Kozyra Certification
Petition for Writ of Habeas Corpus
(Omitted Here Reproduced at Pages
A-13 to A-21)
1
Exhibit C to Kozyra Certification
U.S. District Court Central District
of California (Omitted Here
Reproduced at Pages A-9 to A-12)
Exhibit D to Kozyra Certification
Certification of Gurmeet Singh Dhinsa
(Omitted Here Reproduced at Pages
A-22 to A-25)
Exhibit E to Kozyra Certification A-47
Transcript of Telephone Conversation of
Margie Jackson dated January 15, 1989
Exhibit F to Kozyra Certification A-53
Memorandum of Defense Counsel dated
August 7, 1997
Exhibit G to Kozyra Certification A-57
Affidavit of Walter Johnson dated
December 21, 1998
Order to Show Cause dated January 7, 2003 A-60
Order of Honorable Edward R. Korman
Filed March 7, 2003 A-62
Order of Honorable Edward R. Korman
Filed April 14, 2003 A-64
Letter dated May 16, 2003 from Barry A.
Kozyra To Honorable Edward R. Korman A-66
Order of Honorable Edward R. Korman
filed July 8, 2003 A-68
ill
Order of Honorable Edward R. Korman
filed July 16, 2003 A-70
Letter dated August 5, 2003 from Barry A.
Kozyra to Honorable Edward R. Korman A-72
United States Memorandum in opposition to
Motion dated September 22, 2003 A-75
Exhibit 1 to Memorandum A-94
Decision, United States v. Johnson
Exhibit 2 to Memorandum A-101
Letter dated August 6, 1998 From Joseph
Mure, Jr. To U.S. Attorney’s Office
Exhibit 3 to Memorandum A-103
F.B.I. Statement by Margie Jackson
dated November 18, 1997
Memorandum and Order of Honorable Edward
R. Korman dated September 30, 2003 A-109
Affidavit of Gerald L. Shargel dated
October 7, 2003 A-110
Order of Honorable Edward R. Korman
Dated October 28, 2003 : A-112
Letter dated December 8, 2003 From Barry A.
Kozyra to Honorable Edward R. Korman A-113
Letter dated December 11, 2003 From Barry A.
Kozyra to Honorable Edward R. Korman A-115
Memorandum and Order of Honorable Edward
R. Korman dated December 19, 2003 A-122
1V
Letter dated December 29, 2003 from Barry A.
Kozyra to Honorable Edward R. Korman
Juanita Cotto v. Elaine A. Lord
(Cite As: 2001 WL21246 (S.D.N.Y.)
Edgar Quinones vy. David L. Miller
(Cite As: 2003 WL21276429 (S.D.N.Y.))
Andrew Bostic v. T. Williamson
(Cite As: 2004 WL2271386 (S.D.N.Y.))
Jamila Diaz vy. Kuma J. Deboo
(Cite As: 2004 WL 1244021 (D. Conn.)) -
Delinda Vianne Rogers v. Kuma J. Deboo
(Cite As: 2004 WL 1497541 (D. Conn.))
A-124
A-133
A-169
A-330
A-340
A-345
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MANDATE E.D.N.Y.(bkny,
02-cv-6156
Korman, J.
United States Court of Appeals
FOR THE
SECOND CIRCUIT
At a stated Term of the United States Court of
Appeals for the Second Circuit, held at the Thurgood
Marshall United States Courthouse, Foley Square, in theCity
of New York, on the 26" day of August two thousand four,
Present:
Hon. José A. Cabranes, UNITED STATES
Hon. Chester J. Straub, COURT OF APPEALS
Hon. Richard C. Wesley, FILED AUG 26 2004
Circuit Judges Roseann B. MacKechnie, Clerk
SECOND CIRCUIT
Gurmeet Singh Dhinsa,
Petitioner-Appellant,
04-0427-pr
V.
United States of America and Al Herrera, Warden,
United States Penitentiary in Lompoc, California,
| Respondent-Appellee.
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Appellant moves for a certificate of appealability.
Upon due consideration, it is ORDERED that the motion
is denied and the appeal is dismissed because appellant’s
28 U.S.C. § 2255 motion was time-barred. See 28 U.S.C.
§ 2255.
FOR THE COURT:
Roseanu B. MacKechnie, Clerk
By:s/Richard Alcantara
Richard Alcantara, Deputy Clerk
AUG 26 2004
SAO-LFR A TRUE COPY
ROSEANN B.MACKECHNIE, CLERK
ISSUED AS MANDATE:
NOV 3 2004
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NOT FOR PUBLICATON
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- X
GURMEET SINGH DHINSA,
MEMORANDUM
Petitioner, & ORDER
02-CV-6156(ERK)
-against- 97-CR-0672(ERK)
UNITED STATES OF AMERICA,
Respondent.
aaa nnnennnennnasnnnnnnnnnnnnnnnnnnnn nnn a a X
Korman, Ch. J.
On October 28, 2003, I ordered petitioner to show
cause why the petition should not be dismissed because
his delay in filing the petition made it impossible to
reconstruct the factual circumstances underlying his
claim of ineffective assistance of counsel. Petitioner’s
response to my inquiry on his delay in filing the petition
relied in part on the fact that his petition was filed within
the prescribed one-year period of limitations. The
petition was filed three years after he was sentenced.
The applicability of the doctrine of laches applies
precisely to a case in which the action is filed within the
statute of limitations. Otherwise the doctrine would
serve no purpose. Nevertheless, petitioner's response
caused me to examine the history of the case to
determine whether the petition was timely filed.
The Supreme Court denied the petitioner a writ of
certiorari on October 1, 2001. Dhinsav. United States,
534 U.S. 897, 122 S.Ct. 219 (2001). The petitionwas not
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filedhere until November 20, 2002. This was more than
one year after the petition was denied. While petitioner
filed a petition on September 16,2002, in the Central
District of California, which was styled as a petition
pursuant to 28 U.S.C. § 2241, it was dismissed without
prejudice for lack of jurisdiction because it should have
been filed in the Eastern District of New York as a
petition pursuant to 28 U.S.C. § 2255. |
The period of time during which the petition was
pending in California did not toll the statute of
limitations. Rodriguez v. Bennett, 303 F.3d 435 (2d. Cir.
2003). Nevertheless, the doctrine of equitable tolling
may be applied to the period in which the petition was
pending and decided in the Central District of California.
Even so, the petition is untimely. The petition was filed
in California on September 16, 2002, it was dismissed
on October 2, 2002, and petitioner received notice of the
dismissal on October 7, 2002. See Letter of Barry A.
Kozyra, dated December 29, 2003. Because he waited
until he had only 14 days left to file his habeas petition
in California, petitioner had 14 days from October 7,
2002 to refile his petition here. Instead, without any
explanation for the delay, he waited until November 20,
2002 to do so.
Under the circumstances, the petition must be
dismissed because it was not timely filed. Petitioner’s
implicit suggestion that it was somehow improper for
me to raise the issue sua ponte is without merit. The
Second Circuit has recognized that, while defenses
which are required to be raised by Fed. R. Civ. P. 8(c)
“are ‘ordinarily’ not to be recognized ‘when not raised in
the answer, Davis v. Bryan, 810 F.2d 42, 48 (2d Cir.
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1987) (district court ordinarily should not raise statute of
limitations sua sponte), no absolute bar to the
consideration of such claims exists. See Carbonell v.
Louisiana Dep ‘t of Health and Human Resources, 772
F.2d 185, 189 (5th Cir. 1985) (court may dismiss sua
sponte on res judicata grounds provided it has before it
‘all relevant data and legal records’ or is in the same
district in which the original action was filed).”
Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993)
(emphasis added). The United States magistrate had held
in Salahuddin that the defendants waived the defense of
res judicat, by failing to raise it in the pleadings.
Nevertheless, citing the need to avoid unnecessary
relitigation, he dismissed the claims on res judicata
grounds. Id. 449. The Court of Appeals upheld the
dismissal.
Subsequently, in Pino v. Ryan, 49 F.3d 51 (2d
Cir. 1995), then-Chief Judge Newman observed the
reason for the rule against dismissing a complaint sua
sponte past the point at which the defense is normally
required to be raised, is that a sua sponte dismissal may
be unfair to the plaintiff by rejecting the suit after
considerable time and expense has been invested in it.”
Id.at 53. (emphasis in original) Nevertheless, he
concluded that, even where the issue is raised sua sponte
after an answer has been filed, Salahuddin “explicitly
upheld a court’s authority to do so even in that context.”
Id.at 54.
The statute of limitations defense in this case,
while raised sua sponte after the answer was filed, did
not involve a rejection of the “suit after considerable
time and expenses has been invested in it by plaintiff.”
Indeed, plaintiff expended no more time or effort in it,
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than if the issue had been raised sua sponte after he filed
the petition and before the answer — which clearly
would have been appropriate. Acosta v. Artuz, 221 F.3d
117 (2d Cir. 2000). Indeed, having been afforded the
opportunity to explain the untimely filing, petitioner can
cite no prejudice he suffered because of the timing of
sua sponte action.
On the other hand, the statute of limitations
enacted by Congress reflects compelling considerations
of policy. Delay in filing a petition often makes a retrial
impossible, if such relief is given, and it may make it
difficult to reconstruct circumstances necessary to-
resolve the petition. As the Second Circuit has held:
The AEDPA statute of limitation promotes
judicial efficiency and conservation of judicial
resources, safeguards the accuracy of state court
judgments by requiring resolution of
constitutional questions while, the record is fresh,
and lends finality to state court judgments within
a reasonable time. Like the other procedural bars
to habeas review of state court judgments, the
statute of limitation implicates the interests of
both the federal and state courts, as well as the
interests of society, and therefore “‘it is not
inappropriate for the court, on its own motion, to
invoke the doctrine.”
Acosta v. Artuz, 221 F.3d at 123. Fed. R. Civ. P. 8(a) is
applicable here only to the extent that it may be
“appropriate,” Federal Rules Governing Section 2254
Cases, Rule 11; it does not warrantundermining these
compelling considerations of policy. Nor would it, even
it did apply in the same way as it applies to civil cases.
het »
Because I decide the issue petition on the ground
that it was not timely filed, I need not address the merits
of petitioner’s claim, whih seem to be wholly lacking, or
the defense of laches.
The petition is dismissed. .I deny a certificate of
appealability.
SO ORDERED:
S/Edward R. Korman
Edward R. Korman
United States Chief District Judge
Brooklyn, New York
December 31, 2003
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
GURMEET SINGH DHINSA, JUDGMENT
02-CV- 6156 (ERK)
Petitioner,
-against-
UNITED STATES OF AMERICA,
Respondent.
xX
A Memorandum and Order of Honorable Edward R.
Konnan, United States District Judge, having been filed on
December 31, 2003, dismissing the petition for a writ of
habeas corpus; and denying a Certificate of Appealability; it
is
ORDERED and ADJUDGED that petitioner take
nothing of the respondent; that judgment is hereby entered
dismissing the petition for a writ of habeas corpus; and that a
Certificate of Appealability is denied.
Dated: Brooklyn New York
Jahuary 06, 2004
S/ROBERT C. HEINEMANN
ROBERT C. HEINEMANN
Clerk of Court ,
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FILED
CLERK. U S DISTRICT
COURT CENTRAL
DISTRICT OF
CALIFORNIA
BY DEPUTY
ENTERED Priority X
OCT 2 2002 Send X
CLERK, U.S. DISTRICT COURT Entered X
CENTRAL DISTRICT OF CALIFORNIA Closed
EASTERN DIVISION JS-5/JS-6
' BY DEPUTY JS-2/JS-3
Scan Only
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
GURNEET SINGH DHINSA Case No. Cv 02-7211-VAP
Petitioner, (SGL)
Vs. ORDER RE SUMMARY
AL H.ERRERA, DISMISSAL OF ACTION
Respondent.
On September 16, 2002, petitioner filed the instant
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2241. It appears from the face of the petition that petitioner
currently is a federal prisoner incarcerated at the United
States Penitentiary in Lompoc, California, pursuant to a
sentence imposed following petitioner’s conviction on
October 15, 1999, in the United States District Court for the
Eastern District of New York by the Honorable Edward R.
Korrnan, United States District Judge, for various
racketeering - related offenses. Petitioner is challenging the
legality of his conviction and sentence on the grounds that the
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~
conviction was obtained without petitioner being properly
instructed of his constitutional right to testify on his own
behalf.
ENTER ON ICMS
OCT - 2 2002 OCT —2-2002
Under 28 U.S.C. § 2255
A prisoner in custody under sentence of a court
established by Act of Congress claiming the
right to be released upon the ground that the
sentence was imposed in violation of the
Constitution or laws of the United States, or
that the court was without jurisdiction to
impose such sentences, or that the sentence was
in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may
move the court which imposed the sentence to
vacate, set aside or correct the sentence.
As the Supreme Court observed in United States
v.Addonizio, 442 U.S. 178, 185 (1979), the statute “was
intended to alleviate the burden of habeas corpus petitions
filed by federal prisoners in the district of confinement, by
providing an equally broad remedy in the more convenient
jurisdiction of the sentencing court.”
In this regard, Section 2255 specifically provides that
“Tajn application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this sectiont [] shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless italso appears that the
remedy by motion is inadequate or ineffective to test the
SEE ae
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legality of his detention.” See, e.g., Moore v. Reno, 185 F.3d
1054, 1055 (9th Cir. 1999) (affirming the district court’s
dismissal of a habeas petition collaterally attacking the
validity of a conviction); Troati v. Henm, 843 F.2d 1160,
1162 (9th Cir. 1988). Here, the only reason proffered by
petitioner as to why a Section 2255 motion would be.
ineffetive is that petitioner is presently incarcerated in the
Central District and “the conviction and sentence were not
decided by the Califomia District Court.” Petition at 5.
Although petitioner’s notes correctly that his conviction and
sentence was imposed by the District Court for the
Eastern District of New York and not the Central District of
California, there is nothing about petitioner’s presence ina
federal prison in California which prevents him from
bringing a Section 2255 motion in the sentencing court.
Accordingly, the Court finds that petitioner has failed to
make the requisite showing that
Section 2255 is an inadequate or ineffective remedy.
IT THEREFORE IS ORDERED that this action be
summarily dismissed for lack of jurisdiction. Any other relief
being sought by petitioner herein (e.g., the application of a
non-resident attorney to appear in a specific case) 1s DENIED
as moot.
DATED: September 23, 2002
S/Virginia A. Phillips
VIRGINIA A. PHILLIPS
UNITED STATES DISTRICT JUDGE
Presented by:
s/Stephen G. Larson
STEPHEN G. LARSON
UNITED STATES MAGISTRATE JUDGE
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FILED
CLERK, U.S. DISTRICT COURT
SEP 23 2002
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
Priority X
Send X
Enter X
JS-5/JS-6 X
JS-2JS-3
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
GURMEET SINGH DHINSA, Case No. CV 02—7211-
VAP (SGL)
Petitioner,
JUDGMENT
VS.
AL HERRERA
Respondent.
Pursuant to the Order Re Summary Dismissal of Action,
IT IS ADJUDGED that this action is dismissed
forlack of jurisdiction
DATED:September 23, 2002 ENTER ON ICMS
OCT —2 2002
S/Virginia A. Phillips
VIRGINIA A. PHILLIPS
UNITED STATES DISTRICT JUDGE
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FILED
CLERK U.S. DISTRICT COURT
SEP 16 2002
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
NAME GURMEET SINGH DHINSA
PRISON IDENTIEICATION NO. 53546-053
PLACE OF COFIEMENT U.S.P. Lompoc
3901 Klein Blvd.
. Lompoc, California 43936
ATTORINEY Barry A. Kozyra, Esa.
Kozyra & Hartz. LLC
140 Eagle Rock Avenue _
Roseland. New Jersey 07068
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER
GURMEET SINGH DHINSA CV 02-7211 VAP(SGL)
Petitioner, CR 97-CR-672(ERK)
(EASTERN DISTRICT
v. NEW YORK)
AL HERRERA PETITION FOR WRIT OF
HABEAS-CORPUS BY A
Respondent. PERSON IN FEDERAL
CUSTODY (28 U.S.C. §2241)
INSTRUCTIONS - READ CAREFULLY
This petition shall be legibly handwritten or typewritten,
signed by the petitioner, under penalty of perjury. You must
set forth CONCISELY the answer to each question in the
proper space on the form. Any false statement of a material
fact may serve as the basis for prosecution and conviction for
perjury.
You must not attach separate pages to this petition except that
ONE separate additional page is permitted in answering
Question No. 9.
Upon receipt of a fee of $5.00 your petition will be filed if it
is in proper order.
if you are seeking leave to proceed in forma pauperis
(without paying the $5.00 filing fee and other court costs),
then you must also execute the declaration on the last page,
setting forth information which establishes your inabilityto
pay the fees and costs of the procbedings or to give security
therefor. If you wish to proceed in forma pauperis, you must
have an authorized officer at the penal institution complete
the certificate as to the amount of money and securities on
deposit to your credit in any account in the institution. If your
prison account exceeds $25.00, you must paythe filing fee as
required by the rule of the district court.
When the petition is completed, the original and 3 copies,
must be mailed to the Clerk of the United States District
Court for the Central District of California, United -States
Courthouse, 312 North Spring Street, Los Angeles, California
90012, ATTENTION: Intake/Docket Section.
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Only one sentence, conviction or parole matter may be
challenged in a single petition. If you challenge more than
one, you must do so by separate petitions.
Petitions which do not conform to these instructions will be
returned with a notation as to the deficiency.
PETITION FOR WRIT OF HABEAS CORPUS BY A
PERSON IN FEDERAL CUSTODY (28 U.S.C. §2241)
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PLEASE COMPLETE THE FOLLOWING:
(check appropriate number)
This petition concerns:
1. X aconviction
2. X asentence
3. jail or prison conditions
4. _ prison discipline
5. a parole problem
6. other
PETITION
1. Place of detention: U.S.P. Lompoc, 3901 Klein
Boulevard, Lompoc, California.
2. Name and location of court which imposed sentence:
United States District Court, Eastern District Of New
York.
3. The indictment number or numbers (if known) vpon
which, and the offense or offenses for which, sentence was
imposed:
Indictment number 97CR-672:
a. 18 U.S.C. 1962(c) and 1963 Racketeering;
b. 18 U.S.C. 1962(d) and 1963 Racketeering
Conspiracy;
c. 18 U.S.C. 1959 (a) (5), Conspiracy to Murder (3
counts);
d. 18 U.S.C. 1959 (a)(1), Murder (2 counts);
e. 18 U.S.C. 1512(a)(1)(C) and 1512 (A)(2)(a),
Obstruction of Justice (2 counts);
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f. 18 U.S.C. 924(c), Using and Carrying a Firearm in
Relation to Crimes of Violence;
18 U.S.C. 1959 (a) (4), Threat to Murder*;
gq
h. 18 U.S.C. 922(g)(1) and 924(a)(2), Felon in
Possession of Firearms;
i. 18 U.S.C. 371, Conspiracy to Commit Mail Fraud;
j. 18 U.S.C. 1341, Mail Fraud (6 counts);
k. 18 US.C. 1201, Conspiracy to Kidnap*;
lL 18 U.S.C. 1201, Kidnaping*
*On appcal to the Court of Appeals for the Second
Circuit, convictions for Threat to Murder, Conspiracy
to Kidnap, and Kidnaping were remanded to the
district court for a new trial. The government did not
reprosecute on said issues.
4. The date upon which sentence was imposed and the terms
of the sentence:
a. Petitioner was sentenced on October 15, 1999 by the
Honorable Edward R. Korman, U.S.D.J., to life
sentences on eight counts (including those offenses
which were reversed and remanded on appeal to the
Second Circuit) and to lesser terms on the
remaiuing counts.
5. Check whether a finding of guilty was made:
a. After a plea of guilty
b. X After a plea of not guilty
c. After a plea of nolo contendere
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6. If you were found guilty after a plea of not guilty, check
whether that finding was made by:
a. X Ajury
b. Ajudge without ajury
7. Did you appeal from the judgment of conviction of the
imposition of sentence?
X Yes _No
8. If you did appeal, give the following information for each
appeal:
CAUTION: Jf you- are attacking a sentence imposed
under a federal judgment, you must first file a direct appeal
or motion under 28 U.S C.§ 2255 in the federal court which
entered the judgment.
a. (1) Name of court: U.S. Court of Appeals for the Second
Circuit
(2) Result: Affirmed in part, Remanded in part
(3) Date of result: March 21, 2001
(4) Citation or number of opinion: Docket No. 99-1682
(5) Grounds raised (list each):
(a) The district court erred by admitting the hearsay
statements of two murder victims pursuant to
United States v. Mastrangelo, 693 F.2d 269 (2d
Cir. 1982), and its progeny, and Fed. R. Evid.
804(b) (6);
(b) There was insufficient evidence to establish that
Petitioner acted “for the purpose of maintaining or
increasing [his] position” as provided in 18 U.S.C. §
1959(a);
BG Gk a, ee
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(c) The district court erred by admitting the
testimony of the girlfriend of one of the murder
victims;
(d) Following Petitioner’s motion for judgment of
acquittal pursuant to Fed. R. Crim. P. 29 and at
the sua sponte suggestion of the district court, the
indictment was improperly amended by the Grand
Jury to include charges of interstate kidnaping in
place of kidnaping in aid of racketeering;
(e) There was insufficient evidence to support the
jury’s convictions for interstate kidnaping;
(f) A new trial was warranted on the racketeering
counts because Petitioner’s convictions on a
number of the predicate crimes were invalid;
(g) There was insufficient evidence to support a
conviction for coercion in the first degree, in
violation of N.Y. Penal Law § 135.65;
(h) There was insufficient evidence to support a
conviction on the felon-in-possession of a firearm
charge; and
(i) The district court erred by admitting the evidence
obtained from the search of Petitioner’s car
following his July 7, 1997 arrest.
9. State CONCISELY every ground on which you claim that
you are being held unlawfully. Summarize briefly the facts
supporting each ground. If necessary, attach a SINGLE page
only behind this page.
CAUTION: Jfyou fail to set forth all grounds in this
petition, you may be barred from presenting
additional grounds at a later date. You must
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state facts, not conclusions in support of your
grounds. A rule of thunib to follow is - who
did exactly what to violate your rights at what
time and place.
a. Ground one: Conviction obtained without
claimant being properly instructed of
constitutional right to testify.
b. Supporting Facts: Claimant is a United
States resident alien with no true
familiarity with the American legal, system.
He was tried and convicted on a nunber of
counts, including racketeering and murder.
Nearly all evidence produced at trial was
circumstantial in nature. Claimant was not
properly instructed by his attorney or the
court of his constitutional right to testify in
his own behalf. (See Certification of
Gurmeet Singh Dhinsa, attached hereto as
Exhibit A).
10. Have you file previous petitions for habeas corpus,
motions under Section 2255 of Title 28, United States Code,
or any other applications, petitions or motion with respect to
this conviction? ___Yes X__ No
11. If your answer to Question No. 10 was yes, give the
following information:
Not applicable.
12. If you did not fi.e a motion under Section 2255 of Title
28, United States Code, or if you filed such a motion and it
was denied, state why your remedy by way of such motion is
inadequate or ineffective to test the legality of your detention:
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Conviction and sentence imposed by the United States
District Court, Eastern District of New York. However,
petitioner was immediately transferred for detention at
the U.S.P. Lompoc, which is located within the Central
District of California, where he remains to date. As such,
motion under 28 U.S.C. § 2255 would be an ineffective
means of remedy as the conviction and sentence were not
decided by the California District Court.
13. Are you presently represented by counsel? X Yes No
If so, provide name, address and telephone number:
Barry A. Kozyra, Esq.
Kozyra & Hartz, LLC
140 Eagle Rock Avenue
Roseland, New Jersey 07068
Case Name and Court: Present matter only.
14. If you are seeking leave to proceed in forma pauperis,
have you completed the declaration setting forth the required
information? Yes X No
WHEREFORE, petitioner prays that the court grant
relief to which he may be entitled in this proceeding,
s/Barry A. Kozyra 9/11/02
I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct.
Executed on
Date Signature of Petitioner
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Gurmeet Singh Dhinsa does hereby certify as follows:
1.)I was born in Punjab, Moron, India on May 4, 1962. I
graduated from high school in India. I was not taught
English nor did I have any knowledge of the
American legal system while in India.
2.)I came to the United States when I was 20 years old I
learned English while working starting as a restaurant
delivery boy and later as a service station attendant. I
had no further education in the United States.
3.)In July 1997 [ was arrested and held at the
Metropolitan Detention Center for approximately six
(6) months. I was transferred later to the Metropolitan
Corrections Center where I remained until the end of
my federal trial in March 1999,
4.) From the start of my trial, I was subjected to
unsatisfactory procedures and conditions at the
Metropolitan Corrections Center. I would be deprived
of sleep daily. Many nights I had four hours or less of
sleep. I would be awakened at three or four a.m. on
trial days and returned to my cell after 9:00 p.m. I
would miss meals which conflicted with the travel
schedule. I had flu like symptoms and a cough and
could not get medication needed by me because I was
on trial.
5.) Prior to this case I was involved in only one trial
which went to a jury. (On another occasion a plea was
struck during trial.) In the case which went to the jury,
there was no reason for me to testify because testify
because I did not contest the key fact, my possession
of a gun.
6.) Following the eight week trial, I was convicted on 20
of 29 counts in the indictment. Two counts were
reversed by the Second Circuit on appeal.
7.)I wanted to testify at the trial. I would not have
disputed the charges involving mail fraud and
weapons possession.
A Pek VE
Pe eee Le es
— nr
A-23
~
_ 8.) However, I would have disputed the testimony of the
Government’s witnesses as to conspiracy,
racketeering, murder and kidnapping.
9.) At various times during trial, I stressed my desire to
testify on my own behalf to my defense counsel. On
each occasion, I was told, “hold on” “‘let’s see how it
goes” or words to similar effect.
10.) I accepted this direction because I was told by the
court that I had to speak through defense counsel. I
thr ht I had to listen to what defense counsel told
me x must do.
11.) For example, during the trial a question arose as to
whether a witness could identify my voice. I was told
by my defense counsel that I was not to participate in
a voice identification procedure during the trial. I
asked to do so and my defense attorney then said he
would allow it. I thought that he had to decide such
matters, not me. As directed I communicated through
defense counsel.
12.) Just before the trial ended, I told my defense counsel
that I wanted to testify and to have other evidence
presented at trial. I was told, “we'll see tomorrow.”
13.) At the time, I did not realize the decision tu testify or
not was my own to make.
14.) The next morning, I was told “we don’t want you to
testify.” No other reason was given to me by Gerry
Shargel who gave me that decision. As I believed that
it was his decision, not mine, I felt I had no choice but
to accept it. The trial judge never asked me whether I
wanted to testify or told me it was my right to decide,
not my attorney’s. I was not asked if I wanted to give
up that right. I did not try to ask the trial court any
question since I was told to direct communications to
my lawyer.
15.) Mr. Shargel also refused to call Walter Johnson, a
boyhood friend of one of the Government’s key
witnesses, Marvin Dodson. My attorney had secured
A-24
an affidavit from Mr. Johnson which stated that Mr.
Dodson had lied about my involvement in the crimes
he admitted committing (murders of Satinderjit Singh
and Manmohan Singh). I could have established that I
was never present at the scene of Satinderjit Singh’s
killing through one of the witnesses to the killing and
others who knew my whereabouts elsewhere at that
time. My attorney ignored that evidence and chose
not to present those witnesses whom I wanted to
testify.
16.) Had I been allowed to testify, I would have stated
that I did not know Satinderjit Singh, he did not work
for me and I never spoke with him on the telephone or
in person.
17.) Similarly, I did not know Manmohan Singh, he did
not work for me and I never spoke with him on the
telephone or in person. While others may have had a
dispute with him, I did not know him or care.
18.) As to Balwant Singh, I did not know him, he did not
work for or with me and I never spoke with him on
the telephone or in person. I had wanted Surinder
Parmar to be called as a witness because he would
have corroborated that I never asked him to deliver
any message to Balwant Singh and that he never did
so. I do not know why my attorney would not call him
as a witness. I certainly did drive a car in his
neighborhood because I had business nearby but it
had nothing to do with him or anyone involved in the
case.
19.) As to Sarvjeet Singh, I did not know him, he did not
work for me or with me and I never spoke with him
on the telephone or in person. The murder he
witnessed was committed by my brother, when I was
in prison on the weapons charge in 1991.
20.) Mr. Shargel was certain that he had damaged the
credibility of Marvin Dodson and JI would be
acquitted on the Satinderjit Singh and Manmohn
A-25
Singh offenses, including murder. He told me so. He
said the same thing as to the Sarvjeet Singh charges.
His only worry was on the Muchtir Ghuman
kidnapping offenses (which were reversed on appeal).
21.) Had I been allowed the opportunity to testify and to
have corroborating witnesses, I would have been able
to present my defense that the case against me was the
product of Government witnesses who had lied and
exaggerated their testimony. If I knew that I could
testify and that it was my decision, not that of my
attorney, I would have taken the stand and told the
truth. I would have been acquitted based on all of the
evidence, not the partial evidence the jury heard.
I hereby testify and certify that the foregoing
statements made by me are true. I am aware that if
any statement is willfully false, that I am subject to
punishment by law.
September 7, 2002 s/Gurmeet Singh Dhinsa
Gurmeet Singh Dhinsa
Swore to and subscribed
before me on September 7, 2002
s/Barry A. Kozyra
BARRY A. KOZYRA
A-26 -
KOZYRA & HARTZ,LLC
140 Eagle Rock Avenue
Roseland, New Jersey 07068
973-403-8344
973-403-9652 (Telefacsimile) /
Attorneys fot Petitioner, Gurmeet Singh Dhinsa
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
GURMEET SINGH DHINSA
Petitioner,
CASE NO. 97-CR-672 (ERK)
V.
MOTION TO VACATE
AL HERRERA, CONVICTION AND
Respondent. SENTENCE REMAND
FOR NEW TRIAL
TO: Clerk of the United States District Court
Eas.ern District of New York
225 Cadman Plaza East .
Brooklyn, New York, NY 11201
PLEASE TAKE NOTICE that the undersigned
hereby moves before the above named Court for an Order
entitling Petitioner to an evidentiary hearing before this
Court in support of this motion to vacate the conviction and
sentence imposed by the Final Judgment and Order of the
A-27
United States District Court for the Eastern District of New
York, entered November 5, 1999, which Order sentenced
Petitioner to consecutive life sentences to the United States
Bureau of Prisons, and remanding for a new trial.
This application is made pursuant to 28 U.S.C. §
2255.
In support of this motion, Petitioner shall rely upon
the attached Certification of Barry A. Kozyra, Esq., dated
November 18, 2002, and the Certification of Gurmeet Singh
Dhinsa, dated September 7, 2002.
s/Barry A. Kozyra, Esq.
BARRY A. KOZYRA, ESQ.
Attorney for Petitioner, Gurmeet Singh Dhinsa
DATED: November 18, 2002
CERTIFICATION OF SERVICE
I certify that three copies of the within motion and
moving papers were mailed this day to the Clerk of the
IJnited States District Court of the Eastern District of New
York.
I certify that the foregoing statements made by me are
true. I am aware that if any of the foregoin statements made
by me are willfully false, I am subject to punishment
A-28
DATED: November 18, 2002 s/Barry A. Kozyra. Esa.
BARRY A. KOZYRA, ESQ.
Attorney for Petitioner,
Gurmeet Singh Dhinsa
: A-29
KOZYRA & HARTZ, LLC
140 Eagle Rock Avenue
Roseland, New Jersey 07068
973-403-8344
973-403-9652 (Telefacsimile)
Attorneys for Petitioner, Gurmeet Singh Dhinsa
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
GURMEET SINGH DHINSA
Petitioner, CASE NO. 97-CR-672 (ERK)
CERTIFICATION OF
AL HERRERA BARRY A. KOZYRA, ESQ.
V.
Respondent.
Barry A. Kozyra, Esq., hereby certifies as follows:
1. lam a member with the law firm of Kozyra & Hartz, LLC,
and have been engaged to file an application under 28 U.S.C.
§ 2255 on behalf of Petitioner, Gurmeet Singh Dhinsa, in the
above entitled action.
2. Petitioner is currently incarcerated at the United States
Penitentiary in Lompoc, California, purauant to sentencing
following conviction in the United States District Court for
the Eastern Ditrict of New York.
3. This certification is made in support of Petitioner's
application to vacate the conviction and. sentence imposed
A-30
per the Final Judgment and Qrder entered by the Honorable
Edward R. Korman, U.S.D.C., on November 5, 1999. (See
Final Judgment and Order, attached hereto as Exhibit A).
4. Petitioner was tried on a 29-count indictment and
convicted on twenty counts following an eight week jury
trial, including racketeering, kidnapping, and murder. On
appeal to the Court of Appeals for the Second Circuit, counts
of Threat to Murder, Conspiracy to Kidnap, and Kidnapping
were reversed and remaided to the district court for a new
trial. The Government has chosen not to re-prosecute on the
reversed charges.
5. On September 16, 2002, this office filed a Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2241 on behalf of
Petitioner in the United States District Court for the Central
District of California. As previously noted, Petitioner is
presently incarcerated in Lompoc, California, which is
located in the Central District of California. (See Petition for
Writ of H»beas Corpus by a Person in Federal Custody,
attached hereto as Exhibit B).
6. On September 23, 2002, the Honorable Virginia A.
Phillips, U.S.D.J., dismissed Petitioner’s application for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2241 without
prejudice for lack of jurisdiction, and citing that Petitioner
should move for § 2255 relief in the sentencing court. (See
Order Re Summary Dismisal of Action, attached hereto
as Exhibit C). Since that date, we have invetigated further
Petitioner’s claims and have found additional evidence to
support his application.
7. Petitioner is a United States resident alien with no true
familiarity of the American legal system. (See Certification
of Gurmeet Singh Dhinsa, attached hereto as Exhibit D).
A-31
8 A detailed review of the trial transcripts indicates that
subatantiafly all evidence produced at trial was circumstantial
in nature. (See Transcript of Criminal Cause for Jury
Trial Before the Honorable Edward R. Korman,
U.S.D.J.).
9. Throughout trial, Petitioner repeatedly stressed to his
defense counsel the desire to testify in his own behalf in
order to challenge the testimony of the Government's
withesses as to his alleged acts of conspiracy, racketeering,
murder, and kidnaping, and also sought to intioduce further
evidence of his innocence (See Exhibit D).
10. During the trial, the Government elicited witness
testimony which Petitioner could have contradicted if he had
been given the opportunity to testify. Several of these
witnesses have extensive criminal records and had admitted
that they had repeatedly committed perjury in the past.
(See Transcript of Criminal Cause for Jury Trial Before
the Honorable Edward R. Korman, U.S.D.J.).
11. Defense counsel proceeded through trial and closed the
case without calling Petitioner as a witness in his own behalf,
nor did he call other witnesses who Petitioner wished to
testify on his behalf. (See Exhibit D). —
12. Due to the Court’s instuction to direct all communications
through defense counsel, Petitioner did not believe is was his
decision and constitutional right to tetify in his own behalf at
trial. (See Exhibit D). He further believed that he could not
address his desire to the Court unless his defense counsel
agreed.
13. Petitioner was never instructed by his attorney or by the
Court of his constitutional right to testify in his own behalf.
(See Exhibit D).
A-32
14. In addition, defense counsel’s failure to call several key
witnesses to testify on Petitioner’s behalf, despite Petitioner’s
instructions to do so, deprived Petitiotier of his constitutional
right to produce witnesses in his favor.
15. Petitioner is currently serving life sentences for
conviction on five counts of his indictment and lesser terms
on the remaining counts. The life sentences are based on
convictions on three counts of conspiracy to commit murder
involving Satinderjit Singh, Manmohan Singh, and Sarvjeet
Singh, and two counts of murder involving Satinderjit Singh
and Manmohan Singh.
16. If he had been given the opportunity, Petitioner would
have produced evidence that he was neither involved in the
conspiracy to murder Satinderjit Singh, Manmohan Singh,
and Sarvjeet Singh nor the murders of Satinderjit Singh and
Manmohan Singh.
17. Petitioner would have produced evidence that he did not
know any of the victims nor did not have any disputes with
any of the victims, in contrast to testimony provided against
him at trial. Further, Petitioner would have produced
evidence that he was not present at the scene of any of the
aforementioned criminal acts, in contrast to the testimony
against him at trial.
18. In addition, Petitioner would have called witnesses to
testify in his behalf that Petitioner was not involved in nor
present at the scene of any of the aforethentioned criminal
acts. Specifically, Petitioner would have called Margie
Jackson, Surinder Parmar, and Walter Johnon to testify as to
Petitioner’s innocence. —
19. Margie Jackson was present at the scene of the murder of
Satinderjit Singh. She would have offered testimony that
Petitioner was not present at the scene, in contrast to
BPRS aS Ss OA a eS a PR
A-33
tetimony given by Government witnesses at trial. Jackson
had been identified by the Government as a trial witness, but
was not produced as a witness by the Government or the
defense. (See Transcript of Telephone Conversation of
Margie Jackson, dated January 15, 1999, attached hereto
as Exhibit E).
20. At trial, it was alleged that Surinder Parmar had been
involved in the murder conspiracies of Satinderjit Singh and
Sarvjeet Singh. Between July 2 and July 5, 1997, Parmar was
abducted and harassed by police officers from the 115"
Precinct in Queens, New York, regarding his involvement
with Petitioner. Parmar was jailed, threatened, denied food
and water, and denied counsel despite his repeated requests,
for his failure to cooperate with the Government and to
testify against Petititioner. Parmar later indicated that he
would testify on behalf of Petitioner, but was not produced as
a witness by the Government or the defense. (See
Memorandum of Defense Counsel, dated August 7, 1997,
attached hereto as Exhibit F).
21. Walter Johnson was incarcerated together with Marvin
Dodson in the same unit at the Metropolitan Detention Center
(“MDC”) in or about late- 1997. Johnson and Dodson had
also been childhood friends. Dodson testifled on behalf of the
Government at trial as the main witness against Petitioner.
Dodson in fact has admitted to committing the murders of
Satinderjit Singh and Manmohan Singh. His testimony at trial
implicated Petitioner in the above referenced criminal acts.
(See Transcript of Criminal Cause for Jury Trial Before
the Honorable Edward R. Korman, U.S.D.J.).
22. On or about December 21, 1998, Walter Johnson
provided an affidavit detailing his conversations with Marvin
Dodsoh in which Dodson admitted to the murder of
Manmohan Singh. Dodson did not implicate Petitioner at that
time for any involvement in said criminal act. Further,
A-34
Dodson indicated that he wished to kill Petitioner, also
incarcerated in the MDC, for “ratting” on him. Dodson also
bragged to Johnson that he would be released from prison for
cooperating with the Government. Johnson was willing to
testify at trial inPetititioner’s behalf, but was not produced as
a witness by the Govemtneiit or the defense. (See Affidavit
of Walter Johnson, attached hereto as Ethibit G).
23. Petitioner hereby challenges the legality of his conviction
and sentence on the grounds that the conviction was obtained
without his being properly instructed of his constitutional
right to testify in his own behalf and his constitutional right
to produce witnesses in his favor.
24. This motion for relief is made pursuant to 28 U.S.C. §
2255.
25. Petitioner hereby requests an evidentiary hearing before
the Court in support of this motion to vacate the conviction
and sentence imposed by the Final Judgment and Order
entered November 5, 1999.
26. In order to properly represent the interests of my client, I
would request an appropriate transfer of Petitioner from his
current site of incarceration in Lompoc, California, to another
facility within the United State Bureau of Prisons within the
jurisdiction of the Eastern District of New York no less than
sixty days prior to an evidentiary hearing on this matter.
I HEREBY CERTIFY that the foregoing statements made by
me are true. J am aware that if any of the statements I have
made are willfully false, I am subject to punishment.
s/Barry A. Kozyra
BARRY A. KOZYRA
DATED: November 18, 2002
rer
A-35
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES JUDGMENT INCLUDING
] OF AMERICA SENTENCE FOR OFFENSES
| VS. COMMITTED ON OR AFTER
| NOVEMBER 1, 1987 CASE
GURMEET SINGH NO.: CR-97-0672(S-7)--O1
DHINSA
| Benton Canrnbell & Catherine Bernadette Infantas
| Freisen. Esqs. ESR |
Assistant United States Attorney
1585 Broadway, 19th Floor -
New York. N.Y. 10036
Defendant’s Attorney
Gerald Shargel & David Ruhnke, Esqs.
|
|
The defendant:
X was found quilty on counts 1 —5, 7-11, 14-24
Superseding Indictment after a plea of not guilty.
Accordingly, the defendant is ADJUDGED guilty of such
Count(s), which involve the following offenses:
| TITLE AND NATURE AND COUNT
| SECTION OFFENSE NUMBERS
| T:18, USC, §1962(c) Racketeering ONE(1)
| & 1963
|
T:18, USC, §1962(d) Racketering TWO(2)
& 1963 Conspiracy
A-36
T:18, USC, § 1959(a)5) Conspiracy to Murder THREE(3)
Satinderjit Singh
T:18, USC, §1959(a)(1) Murder of Satinderyit FOUR(4)
Singh
T:18, USC, §1512(a) Obstruction of Justice FIVE(5)
(2)(C) & 1512(a)(2)(A) in the Murder of
Satinderjit Singh
T:18, USC, §1959(a)(5) ‘Conspiracy to Murder SEVEN(7)
Manmohan Singh
T:18, USC, §1959(a)(1) Murderof Manmohan EIGHT(8)
Singh
T:1S, USC, §1512(a)(2) Obstruction of Justice = NINE(9)
(C) & 1512(a)(2)(A) in the Murder of
Manmohan Singh
T:18, USC, §924(c) Using and carrying TEN(10)
a firearm in relation
to crimes of violence
T:18, USC, §1959(a)(4) Treat to murder ELEVEN(11)
Balwant Singh
T:18, USC, §1959(a)(S5) Conspiracyto FOURTEEN(14)
Murder Savett Singh
T:18, USC, §922(g)(1) Felon in possession FIFTEEN(15)
& 1515 (A)(2)(a) of firearms
T:18, USC, §371 Conspiracy to SIXTEEN(16)
, commit mail Fraud
T:18, USC, §1341 Mail Fraud SEVENTEEN(17)
THRU TWENTY
-TWO(22)
A-37 :
T:18, USC, §1201 Conspiracy to TWENTY-
kidnap Muchtir THREE(23)
Ghuman
T:18, USC, §1201 Kidnapping of TWENTY-
Muchtir Ghuman FOUR(24)
The defendant is sentenced as provided in pages 2 through 5
of the Judgment. The sentence is imposed pursuant to the
Sentencing Reform Act of 1988.
-The defendant is advised of his/her right to appeal within ten
(10) days.
-The defendant has been found not guilty on counts 6, 12, 13,
and 25 through 29 and is discharged as to such counts.
-Open counts are dismissed on the motion of the United
States.
-The mandatory special assessment.is included in the portion
of Judgment that imposes a fine.
-It is ordered that the defendant shall pay to the United States
aspecial assessment of $ 2,000.00 which shall be due
immediately.
App.1278
Page 2 of 7
DEFENDANT: GURMEET SINGH JUDGMENT
DHINSA
CASE NUMBER: CR-97-0672(S-7)-01
It is further ORDERED that the defendant shall notify
the United States Attorney for this District within 30 days of
any change of residence or mailin« address until all fines,
restitution, costs and special assessments imposed by this
Judgment are fully paid.
53546-053
Defendant’s USM # October 15. 1999.
Date of Imposition of sentence
05-04-62
Date of Birth
110 68-2560 s/Edward R. Korman.
Defendant’s Soc. EDWARD R. KORMAN, U.S.D.J.
Sec. Number
In Custody.
Defendant’s mailing address
Date of signature
A TRUE COPY ATTEST
2572 National Drive DEPUTY CLERK
Brooklyn. New York 11234
Defendant’s Residence Address:
App -1279
: Page 3 of 7
DEFENDANT: GURMEET SINGH JUDGMENT
DHINSA
CASE NUMBER: CR-97-0672(S-7)-01
IMPRISONMENT
The defendant is hereby committed to the custody of the
United States Bureau of Prisons to be imprisoned for a term
of Life Imprisonment on counts 1, 2, 4, 5, 8,9, 23 & 24.
Defendant shall serve a term of imprisonment for a period of
One Hundr ed Twenty (120) months on counts 3, 7, 14 & 15
which shall run concurr ently with sentence imposed on
counts 1, 2, 4, 5, 8, 9, 23, 24 and shall_run consecutively
with each other. Defendant shall serve a term of
imprisonment for a period Sixty(60) months on counts 1] and
A-39
16 through 22 wi *ch shall run concurrently with sentence
imposed on counts | through 5, 8, 9, 14, 15,23, 24 and shall
run consecutively with each other. Defendant shall serve a
term of imprisonment for a period of Sixty(60) months on
count 10, which shall run consecutively with sentence
imposed on all other counts.
The Court recommends that the defendant be
designated
The defendant asks to be housed in a facility The
court notes this so that the Bureau of Prisons can
accommodate his/her request if space permits.
x The defendant is remanded to the custody of the
United States Marshal
The defendant shall surrender to the United States
Marshal forthis District.
The defendant shall surrender for service of
sentence at the institution designated by the Bureau of
Prisons.
-12:00 noon:
As notified by the United States Marshal.
As notified by the Probation Office.
RETURN
I have executed this Judgment as follows:
Defendant delivered on to at
with a certified copy of this Judgment.
United States Marshal
By:
App1280
Page4of 7
DEFENDANT: GURMEET SINGH JUDGMENT
DHINSA
CASE NUMBER: CR-97-0672(S-7)-0 1
SUPERVISED RELEASE
Upon release from Imprisonment, the defendant shall be on
supervised release for a term of: Three(3) years on counts 3,
7, 14 & 15 which shall run concurrently with each other.
Defendant shall serve a term of Supervised Release for a
period of Three(3) years on counts 11 and 16 through 22
which shall run concurrently with each other and with the
time of Supervised Release on counts 3, 7, 14 & 15.
Defendant shall serve a term of Supervised Release for a
period of Three(3) years on count 10, which shall run
concurrently with the term of Supervisied Release imposed on
all other counts.
The defendant shall report to the probation office in the
district to which the defendant is released within 72 hours of
release from the custody of the Bureau of Prisons.
A-41
While on supervised release, the defendant shall not commit
another Federal, State, or Local crime and shall comply with
the standard condition that have been adopted by this Court
(Seaforth on the following page).
The defendant is prohibited from possessing a firearm.
The defendant shall not illegally possess a controlled
substance.
If this Judgment imposes a restitution obligation, it shall be a
condition of supervised release that the defendant pay any
such restitution that remains unpaid at the commencement of
the term of supervised release. The defendant shall comply
with the following additional conditions:
The defendant shall pay any tines that remain unpaid at the
commencement of the term of
supervised release.
~ SPECIAL CONDITIONS:
App.1281
Page5 of 7
DEFENDANT: GURMEET SINGH JUDGMENT
DHINSA
CASE NUMBER: CR-97-0672(S-7)-01
STANDARD CONDITIONS OF SUPERVISION
While the defendant is on probation or supervised release
pursuant to this Judgment:
A-42
1) The defendant shall not leave the judicial
2)
3)
4)
5)
6)
7)
8)
district without the permission of the court or
probation officer;
The defendant shall report to the probation
officer as directed by the court or probatibn
officer and shall submit a truthful and
complete written report within the first five
days of each month;
The defendant shall answer truthfully all
inquiries by the probation officer and follow
the instructions of the
probation officer;
The defendant shall support his or her
dependents and meet other family
responsibilities;
The defendant shall work regularly at a lawful
occupation unless excused by the probation
officer for schooling, training or other
acceptable reasons:
The defendant shall notify the probaon officer
within 10 days prior to any change in
residence or employment;
The defendant shall refrain from excessive use
of alcohol and shall not purchase, possess, use,
distribute, or administer any narcotic or other
controlled substance, or any paraphernalia
related to such substances, except as
prescribed by a Physician;
The defendant shall not frequent places where
contr oiled substances are illegally sold, used,
distributed, or administered;
PO RE CARTES tae TOD start Ys, A EN yA es
- A-43
9) The defendant shall not associate with any
persons engaged in criminal activity; and shall
not associate with any person convicted of a
felony unless granted permission to do so by
the probation officer;
10) The defendant shall permit a probation officer
to visit him or her at any time at home or
elsewhere and shall
permit confiscation of any contraband
observed in plain view of the probation
officer;
11) The defendatit shall notify theprobation
officer within 72 hours of being arrested or
questioned by a law enforcement officer;
12) The defendant shall not enter into any
agreement to act as an informer or special
agent of a law enforcement agency without the
permission of the court;
13) As directed by the probation officer, the
defendant shall notify third parties of risks that
may be occasioned by the defendant’s
criminal record or personal history or
characteristics, and shall permit the probation
officer to make such notifications and to
confirm the defendant’s compliance with such
notification requirement.
App1282
Page 6 of 7
DEFENDANT: GURMEET SINGH JUDGMENT
DHINSA
CASE NUMBER: CR-97-0672(S-7)-01
CRIMINAL MONETARY PENALTIES
X DEFENDANT SHALL PAY A SPECIAL
ASSESSMENT IN THE AMOUNT OF ONE HUNDRED
DOLLARS(S100.00) ON EACH OF COUNTS 1
THROUGH 5, 7 THROUGH 11, AND 14 THROUGH 22
AND THE DEFENDANT SHALL PAY A SPECLAI
ASSESSMENT IN THE AJOUNT OF FfFTY DOLLARS
($50.00) ON EACH OF COUNTS 23 AND 24 FOR A
TOTAL ASSESSMENT IN THE AMOUNT OF TWO
THOUSAND DOLLARS($2,000.00).
X. DEFENDANT SHALL PAY A FINE IN THE
AMOUNT OF FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) TO BE PAID IN ACCORDANCE WITH
THE TERMS SET OUT IN PARAGRAPH TWO OF THE
CONSENT ORDER ATTACHED HERETO.
X. DEFENDANT SHALL MAKE RESTITUTION IN
ACCORDANCE WITH THE TERMS SET OUT IN
PARAGRAPH ONE OF THE CONSENT ORDER
ATTACHED HERETO.
App 1283
Page 7 of 7
DEFENDANT: GURMEET SINGH JUDGMENT
DHINSA
CASE NUMBER: CR-97-0672(S-7)-01
4
ee
nn bk WL tl at ld re
Se Re Oe EN te GL. BAP As IRAN ve ok
A-45
STATEMENT OF REASONS
X. The Court adopts the factual findings and guideline
application in the pre-sentence report.
The Court makes the foil dwin findings regarding the
guidelines calculation:
GUIDELINE RANGE DETERMINATION BY THE
COURT
Total Offense Level: 51
Criminal History Category: V
Imprispnment Range: Life Imprisonment. In addition, count
10 requires a consecutive 60 month custody sentence.
Supervised Release Range: Cbunts 1, 2, 4, 8, 23 and 24 3 to 5
YEARS Counts 3, 7, 10, 11 and 14 through 22 2 to 3 YEARS
Fine Range: $25.000.00 TO $250,000.00
DEPARTURES FROM THE GUIDELINES RANGE
The sentence is within the guideline range, that
range DOES NOT EXCEED 24 months, and the court
finds no-reason to depart from the sentence called for by
the application of the guidelines.
OR
X__The prison sentence is within the guideline range, that
range EXCEEDS 24 months.
Upon motion of the government, as a result of "
defendant’s substantial assistance.
A-46
X_For the following specifle reason(s): The fine exceeds
the guideline range pursuant to a stipuation of the parties.
App.1284
ejactbcetan wedi es
A-47
January 15, 1999
Chris Reese
Margie Jackson
Chris: But listen - let me ask y’all a question.
Margie: What’s up?
Chris: What’s been going on with you?
Margie: Nothing much - I been working.
Chris: You alright?
Margie: Chillin’ - hell yeah!
Chris: I mean you ain’t —
Margie: I’m doing great baby —
Chris: Let me ask you a question though wait —
Margie: J ain’t no crack (UI) doing no crazy shit —
Chris; No no no no no not like that. Not like that. But
I’m saying you ain’t in no trouble or nothing?
M>rgie: No I’m not in no trouble.
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
A-48
You know why- cause you- I heard your name
recently. Or I read your - I read your name and
I heard it.
Read it?
Read it and heard it recently. And it and-and
unless they talk
You read it?
Unless they talking about somebody else
In a letter?
Huh?
You read it in newspaper?
No I read it in- No it hasn’t been in the
newspaper yet. It might end up in the
newspaper. But it hasn’t ended up in the
newspaper yet. You know a dude named
Mary?
Yeah. 7
So you know what I’m talking about?
Yeah I know what you’re talking about. But I
ain’t in no trouble.
Oh no- that’s what I’m saying but...
Oh, OK.
|
.
;
.
:
|
|
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
A-49
Um- 1-I-I heard it and I’m like- wait a minute-
that’s my people.
Yeah yeah yeah.
And-and I know ‘em.
Mmm-hmm.
I been talking to him.
Ok. You do? You haven’t spoke to him?
I speak--1 was speaking to him up until- a few
weeks ago - everyday.
What?
Ev- when’s the last time you spoke to him?
Since since last year- the year before last
actually.
You haven’t spoke to him since he been in?
No.
At all?
I can’t.
What?
I can’t and my number changed and all’a that
stuff- you know?
Oh they did all that?
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
Margie:
Chris:
A-50
Yeah- no I changed my own number.
Oh-
That’s what happened...
Beause you know what - you know - I don’t
know - see. If I understood it correctly you
supposed to be - they supposed to be calling
on you.
They already (UI) to the DA’s and all that
stuff.
No - I mean they supposed to be call - cause
you know the trial is going on.
Yeah it’s going on nght now —
Yeah.
I know all of that.
Right.
I gotta go to the DA’s Saturday and do um -
you know how they prepare you for
questioning and stuff like that.
They going to prepare you to- for questioning?
Yeah.
Mmm. Cause-cause I was reading this thing
and I was like - what the fuck- how this come
about?
ely ee ts. Pee i eae 7 2
a eee
Margie:
Chris:
Margie:
A-5]
Yeah yeabh- it-it’s some shit. I was at the
wrong place at the wrong time babe.
Yeah- but you know what-you know he-you
know from what I understand-
Right.
From what, from what I heard from yesterday -
Uh-huh.
That he said he paid you.
No he didn’t.
This is what I heard.
No he didn’t. No he did not. No he did not
From what I heard he said he paid you seven
hundred dollars.
No he didn’t give me no seven hundred
That’s my word-this is what I heard.
That’s what Marvin told you?
This is what I heard.
That’s bullshit - well you heard wrong.
* K &
Chris:
Margie:
Chris:
Margie:
Chris:
Maigie:
Chris:
A-52
But he said- he I swear he said he gave you
seven hundred dollars. 7
Yeah.
He said he gave you seven hundred dollars
afterwards.
Yup.
He said he gave you seven hundred dollars
afterwards- I think be said that yesterday.
laughing]
Mmm-hmm.
vt Nt a Tat Cn i ale A PE ipa
)
Memo
To: GLS
From: JL
Subject: Singh: Surinder Parmar/Kuldip Singh
Date: August 7, 1997
Pannar
Les Levine and I met with Parmar at his attorney Joe Mure’s
office on July 25, 1997. Parmar recounted the events
surrounding his abduction, from July 2 through July 5, by
officers from the 115th Precinct in Queens.
_On Saturday, July 2, at about 7 am, detectives from the 115th
Precinct stopped by Parmar’s bakery and told him they
needed to talk to him. Parmar was put in a car and brought to
the 115 and locked up. Five detectives began a steady stream
of questioning and yelling about Singh. Parmar was accused
of being involved in a murder conspiracy with Singh. The
intended victim was Balwant Singh, the owner of BK
Construction in Queens Village and the apparent unnamed
subject of Count 4 of the indictment.
Balwant ran into Parmar inside the temple in Queens, and,
according to Parmar, the police believe that at the temple
Paimar inforined Balwant of the plot to kill him. Balwant’s
murder would have been payback for the 10 Avenue murder
which Balwant supposedly ordered.
During the four day period, Parmar was not allowed to call a
lawyer despite his repeated requests. He was denied food and
_
A-54
water. He begged to be released and complained that his
business was suffering. He was also told by the detectives,
repeatedly, that if he did not cooperate with them Singh
would kill him. In addition to the abuse, an Indian detective
named Rocco threateheu to beat him. Parmar denied being
involved in any plot with Singh or having knowledge about
any of Singh’s illegal ativities. He also refused to cooperate
with the detectives.
Finally, on Sunday evening, he was taken to a Flushing
precinct. He was never entered into the log in any precinct.
He was later brought back to the Northm Blvd precinct He
was moved around a lot so that he would not be found by
Singh’s lawyers (a la Marvin).
GLS
Page 2
August 7, 1997
Finally, he ended up in Central booking (on Monday).
Marvin, for a short time, shared a cell with him. Marvin
didn’t know him. During Marvin’s time in the cell, he called
his mother and others-stating that ““The game is over; I can’t
do nothing. I did my job.”
The charges were dropped against him on Monday. FBI agent
Glynn took Parmar and Marvin and Marvin’s cousin (?)
Robin or Reuben to 26 Federal Plaza on Tuesday. Pictures
and prints were taken. Glynn asked about “Gulzar” Singh
(who, apparently, 1s acutally Vipin) Parmar was released
Tuesday at 4 pm and given $40 by Glynn.
Two days later, the detectives came again to his house (7 pm)
and took him to the 105th Precinct. He was kept for two
hours and asked about Lucky. He was also asked about the
video from the party (the detectives had the video). He was
shown pictures of Marvin. He told them that he had seen
ee Ce ee ee eee Se ee ee ree eee
a a ees ews ee
A-55 mn
Marvin in jail; the detectives asked what Marvin had said. He
was also shown a picture of Balwant. He was threatened with
indictment unless he cooperated.
The next morning, the detectives came to the bakery. Parmar
was not around. Detective Frank Bovino left his card (he
conducted the search of 276 North Henry Street re guns).
Leslie Caldwell called Mure a few days later and asked if
Parmar wanted to cooperate. - She claimed that he had
indicated to the detectives that he did. She also informed
Mure that Parmar was in danger and that he was not a suspect
at this point in any crimes.
Parmar informed me that he knew nothing about the murder
of the Livery car driver in Queens and never saw the October
of 1991 shooting or fight that precipitated it.
Kuldip Singh
I met with Kuldip Singh on two occasions (July31 and
August 2) regarding his treatment by detectives from the
115th Precinct. Kuldip works at the station on 2800 Bruckner
Blvd. On July 29, detectives from the 115 visited the station
looking for him; however, he had previously gone home due
to illness. The detectives left a card (Det. Verrna, also known
as “Rocky”) with John who works at the attached
convenience store and a number for Kuldip to call.
Kuldip called the next day. Verma stated that he wanted to
stop by for questioning and Kuldip said he worked from 6 am
until 6 pm. Verma came by and parked across the street. He
told Kuldip to just walk across the street into Verma’s car so
that no one would notice what he was doing.
GLS
August 7, 1997
Kuldip was taken to the 115" Precinct at 5 pm for 5 hours.
He was questioned by 15 detectives over the 5 hour period.
Despite repeatedly asking to call his attorney (he showed my
name and nunber), Verma refused, claiming that Kuldip
didn’t need a lawyer. Kuldip was asked about Singh, his
brother, Vipin, Babu and Brother #1. Kuldip claimed that he
did not know what happened to Brother #1(Kulwant Singh).
Kuldip was also asked how his pumps short customers.
Kuldip denied this. Verma told him, screaming at times,
“Singh has tried to kill you!!!” Verma offered to put Kuldip
and his family in the Wilness Protection Program. After five
hours, Kuldip was brought home when he reffised to
cooperate. The detectives promised to come back again to
Visit him
** MB: Magda spoke with Verma at approximately Spm on
July 30; apparently the time Kuldip had been brought back to
the 115. Venna denied knowing Kuldip and claimed that he
had been in court testifring all day.
A-57
AFFIDAVIT OF WALTER JOHNSON
STATE OF KANSAS )
) ss:
COUNTY OF LEAVENWORTH )
WALTER JOHNSON. being duly sworn, deposes arid says:
1. Ihave known Marvin Dodson for a number of years.
Last fall he and I were incarcerated together in Unit 3
South of the Metropolitan Detention Center.
2. When I asked Dodson the reason he was incarcerated
he told me that “they got me for some serious shit. I
was at a gas station and two guys were in a van. They
were supposed to do it [a murder] but I had to come
from behind ad do it myself.”
3. We had learned that an inmate named “Singh”
was.also inthe Metroplitan Detention Certer. Initially,
Dodson told myselt and Other inmates that he planned
on killing “Singh” because Singh was “ratting” on
him.
4. Dodson told me that he met Singh after he showed up
at Singh’s construction site with a bunch of men.
Dodson said to me that he told the person in charge
that either his crew better be put on the job, or, Singh
could just pay him and he would take care of
everyone. If the money wasn’t paid, Dodson claimed
there would be a lot of trouble for Singh at the
construction sites.
5. Dodson told me that before getting arrested, he was
trying to find out where Singh kept his money and
then he would rob and kill Singh. Dodson claimed
that he followed Singh home a couple of times. In
A-58 °
addition, be claimed that he wanted to learn the
gasoline business and get close to Singh so that after
he killed him he could take over Singh’s business. He
said he was “playing Singh real close.”
6. Dodson asked if I would be willing to do some
“work” for him on Singh-“work” meaning to murder
him. He also asked me to get a keife for him to itse to
stab Singh
7. Once, we were on the deck of Unit 3 South. Singh
was on the deck of Unit 4 South at the time, which
was visible to us Dodson began screaming at Singh
and -threatened him. Dodson also called him a rat.
Finally Singh just looked at him and said “Marvin,
why did you do this to me?” Dodson just kept on
~ screaming trying to cause confusion so that no one
would listen to Singh. At ‘this point, I realized that
the reason Dodson was doing this was beause he had
lied about Singh being a “rat” and did not want us to
hear Singh’s comments
8. I confronted Dodson about this and he admitted that
he was the one who was “ratting” on Singh. He told
me that after be was arrested, he was interrogated for
a long time by detectives. Once Singh’s name came
up, the detectives just wanted to talk about Singh.
Dodson told me that the detectives told him that if he
cooperated .against Singh it would be like “Gotti and
Sammy the Bull,” meaning that he would not spend
much time in prison. Dodson bragged to me that he
thought he’d get out of ‘ail “in a minute.”
9. Even after Dodson adimitted that he was “ratting on
Singh,” he still asked me for help in killing Singh. I
told him that I would not help.
A-59 :
10. Dodson never claimed that Singh was involved in the
crime for which Dodson was charged. I asked Dodson
why he was cooperating against Singh and be told me
that be had to blame Singh because he didnt want to
spend the rest of his life in prison. He said Singh
would “walk” in this case because he had a lot of
money. Dodson said that Singh had “so much money, -
even if he goes to trial he’ll win.” Dodson claimed
that he had no money so he had to tell the “Feds” a
story that they wanted to hear.
11. The “Feds” wanted Singh bad, according to Dodson.
They told Dodson that Singh “had gotten away with a
lot in the past.” In addition, they told Dodson that
they wanted Singh’s money.
12. Dodson told me that he hoped that “these mother
fuckers”—meaning the Feds— “don’t arrest my girl”
He didn’t say if she was involved in his crimes.
s/“’alter Johnson
WALTER JOHNSON .
Sworn to before me the
21* day of December 1998
s/signature
A-60
UNITED STATES DISTRICT COURT FILED
EASTERN DISTRICT OF NEW YORK. INCLERKS
OFFICE U.S.
GURMEET SINGH DHINSA, ....
Petitiorer ORDER TO SHOW CAUSE
- against -.
AL HERRERA CV-02-6156 (ERK)
Respondent.
KORMAN, J.
Upon the petition made pursuant to 28 U.S.C. 2255, dated
11/18/02. , a copy of which is annexed, it is hereby
ORDERED that:
(1) petitioner is granted leave to proceed in forma
pauperis;
{
(2) the United States Attorney for the Eastern District of
New York as attorney for the respondent, show cause
before this Court by the filing of a return to the
petition, why said motion pursuant to 28 U.S.C 2255
should not be granted;
(3) within sixty (60) days of receipt of this order, the
United States attorney for the Eastern District of New 3
York shall serve a copy of his return upon the
petitioner herein and file the original thereof, with
proof of such service, with the Clerk Of this Court;
(4) Petitioner, within sixty (60) days of receipt of a copy
of the return of the United States Attorney, shall file a
reply, if any, with the Clerk of this Court;
A-61
(5) service of a copy of this Order to Show Cause shall be
made by the Clerk of this Court by forwarding a copy
thereof together with a copy of the petition, to the
United States Attoriey for the E.D.N.Y., attention of
BENTON CAMPBEIL, AUSA and by mailing a
copy of this order to the petitioner.
s/Edward R. Korman
EDWARD R KORMN,
U.S. D. é.
DATED: Brooklyn, New York
January 7, 2003
A-62
U.S. Department of Justice
United States Attroney
Eastern District of New York
U.S.One PierrepontPlaza
Brooklyn, New York 11201
Mailing Address: 147 Pierrepont Street
Brooklyn, New york 11201
March 7, 2003
FILED
IN CLERK’S OFFICE
U.S. DISTRICT COURT E.D.N.Y.
MAR 07 2003
Hon. Edward R. Korman
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201
Re: Gurmeet Singh Dhinsa v. Al Herrera
Civil Docket No. 02-6156 (ERIC)
Dear Chief Judge Korman:
The government submits this letter to request an
extension of the date for filing a response to the 2255 petition
of Gurmeet Singh Dhinsa from March 10, 2003 to April 14,
2003. This government makes this request because it has
proven
necessary to order portions of the trial transcript directly from
A-63
the transcription service and review a number of documents
and records associated with the petitioner’s lengthy criminal
trial which are in storage.
We have consulted counsel for the petitioner, Barry
Kozyra, Esq., and he has advised that he does not oppose the
government’s request.
Respectfully submitted,
ROSIJYNN R. MUSKOPF
ED STATES ATTORNEY
By: _s/signature
Benton J. Campbell
Ronald G. White
Catherine Friesen
Asst. U.S. Attorneys
cc: Barry A. Kozyra, Esq.
(Via fax 973-403-9652)
BCPA peas LE 1 ANON Tak ne ac eins Se ot
- A-64
FILED U.S. Department of Justice
IN CLERK’S OFFICE
U.S. DISTRICT COURT E.D.N.Y.
APR 14 2003 United States Attorney
Eastern District of New York
One Pierrepont Plaza
Brooklyn, New York 11201
Mailing Address: 147 Pierrepont Street
Brooklyn, New York 11201
April 10, 2003
Re: Gurmeet Singh Dhinsa v. Al Herrera
Civil Docket No. 02-6156 (ERK)
Dear Chief Judge Korman:
The government submits this letter to request an
extension of the date for filing a response to the 2255 petition
of Gurmeet Singh Dhinsa from April 14, 2003 to May 19,
2003. This government makes this request because it has
proven necessary to order portions of the trial transcript
directly from the transcription service and review a number
of documents and records associated with the petitioner’s
lengthy criminal trial which are in storage. According to the
court reporter, it has taken an unusually long time to obtain
the transcript because the contents of the court’s file had to
be catalogued prior to its retrieval, a process that remains
ongoing.
We have consulted counsel for the petitioner, Barry
Kozyra, Esq., and he has advised that he does not oppose the
government’ s request.
- Respectfully submitted,
ROSTYNN R. MTUSKOPF
UNITED STATES ATTORNEY
A-65
By:s/Catherine Friesen
Benton J. Campbell
Ronald G. White
Catherine Friesen
Asst. U.S. Attorneys
cc: Barry A Kozyra, Esq.
(Via fax 973-403-9652)
A-66
KOZYRA & HARTZ, LLC
COUNSELLORS AT LAW
140 EAGLE ROCK AVENUE -
ROSELAND, NEW JERSEY 07068
973-403-8344
BARRY A, KOZYRA(1)
JUDITH A. HARTZ Our File No. 10079-1
Telefacsimile: 973-403-9652 Email BarryKozya
@KozyraHartz.com
RAJ GADHOK1(1)
LYNNE M. GIACHETTI
(1)MEMBER OF NJ & NY BARS
May 16, 2003
Hon. Edward R. Korman _
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
a ee ee ee
Re: Gurmeet Singh Dhinsa v. Al Herrera
Civil Docket No. 02-6156 (ERK)
Dear Chief Judge Korman:
I am in receipt of a letter dated May 15, 2003,
submitted by Assistant United States Attorney Catherine
Friesen on behalf of the Government seeking to extend the
date for filing a response to the Section 2255 petition on
behalf of Gurmeet Singh Dhinsa from May 19, 2003 to July
21, 2003.
As noted in the Government’s request, did not
oppose the request and extension of time to file responsive
papers. However, this is the third time that the Government
has requested for an extension of time to file opposition to
the Section 2255 petition while Mr. Dhinsa remains in prison
A-67
in Lompoc, California. I advised Assistant United States
Attomey Friesen that I would oppose any further extension of
time to file a responsive position by the Government by
reason of its inability to obtain documents. I would
repspectfully request that the Court indicate that there will be
no further adjournments granted by reason of the
Government’s inability to obtain trial transcripts or other
documents.
Respectfully submitted,
s/Barry A. Kozyra, Esq.
BARRY A. KOZYRA, ESQ.
BAK:phw
cc: Catherine Friesen, Asst. U.S. Attorney
- :
A-68
U.S. Department of Justice
FILED !
IN CLERKS OFFICE United States Attorney
U.S. DISTRICT JRT E.D.NY Eastern District of New York
JUL 08 2003 !
One Pierrepont Plaza
Brooklyn, New York 11201
Mailing Address: 147 Pierrepont Street
Brooklyn, New York 1120]
May 15, 2003
Hon. Edward R. Korman
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
ee er ee ee ee Seen eet ee
Re: Gurmeet Singli Dhinsa v. Al Herrera
Civil Docket No. 02-6156 (ERK)
Dear Chief Judge Korman:
The government submits this letter to request an
extension of the date for filing a response to the 2255 petition
of Gurmeet Singh Dhinsa from May 19, 2003 to July 21,
2003. This government makes this request because it has
proven necessary to order portions of the trial transcript
directly from the transcription service and review a number
of documents and records associated with the petitioner’s
lengthy criminal trial which are in storage. According to the
court reporter, it has taken an unusually long time to obtain
the transcript because the contents of the court’s file had to
be catalogued prior to its retrieval, a process that remains
: A-69
ongoing. We are hopeful that this will be the government’s
final] request for an adjournment.
We have consulted counsel for the petitioner, Barry
Kozyra, Esq, and he has advised that he does not oppose the
government’s request.
Respectfully submitted,
ROSIYNN R. MAUSKOPF
UNITED STATES ATTORNEY
By: S/Catherine Friesen
Benton J. Campbell
Ronald G. White
Catherine Friesen
Asst. U.S. Attorneys
cc: Barry A. Kozyra, Esc.
(Via fax 973-403-9652)
A-70
U.S. Department of Justice
FILED
IN CLERKS OFFICE United States Attorney
U.S. DISTRICT JRT E.D.NY Eastern District of New York
JUL 16 2003
One Pierrepont Plaza
Brooklyn, New York 11201
Mailing Address: 147 Pierrepont Street
Brooklyn, New York 11201
July 15, 2003
Hon. Edward R. Korman
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re: Gurmeet Singh Dhinsa v. Al Herrera
Civil Docket No. 02-6156 (ERK)
Dear Chief Judge Korman:
The government submits this letter to request an
extension of the date for filing a response to the 2255 petition
of Gurmeet Singh Dhinsa from July 21, 2003 to September
21, 2003. This government makes this request because we
have not yet received the transcript of the charging
conference held February 18-19, 1999, during which we
believe the defendant’s right to testify was addressed. There
have been numerous delays in the preparation of the
transcript, which we first requested in February, apparently
due to the transmission of the court folder to closed files.
AUSA Friesen left a message last week with counsel for
petitioner, Barry Kozyra, Esq., advising him that we intended
ee ee ee, a mn ee
A-71
to request another adjournment and asking whether he had a
copy of the transcript at issue. We have not yet heard back
from him.
Respectfully submitted,
ROSLYNN R. MAUSKOPF
UNITED STATES ATTORNEY
By: s/Catherine Friesen
Benton J. Campbell
Ronald G. White
Catherine Friesen
Asst. U.S. Attorneys
cc: Barry A. Kozyra, Esq.
(Via fax 973—403— 9652)
A-72
KOZYRA & HARTZ, LLC
COUNSELLORS AT LAW
140 EAGLE ROCK AVENUE -
ROSELAND, NEW JERSEY 07068
973-403-8344
BARRY A, KOZYRA(1)
JUDITH A. HARTZ Our File No. 10079-1
Telefacsimile: 973-403-9652 Email BarryKozya
@KozyraHartz.com
RAJ GADHOKI(1)
LYNNE M. GIACHETTI
(1)MEMBER OF NJ & NY BARS
August 5, 2003
Hon. Edward R. Korman
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re: Gurmeet Singh Dhinsa v. Al Herrera |
Civil Docket No. 02-6156 (ERK)
Dear Chief Judge Korman:
This office represents Gurmeet Singh Dhinsa with
respect to a petition for relief from his conviction and
sentence pursuant to 28 U.S.C. §2255. On July 15, 2003,
Your Honor entered an Order extending the Government’s
time to file its brief and responding papers in the above-
captioned matter to September21, 2003. This is the
Government’s fourth request for an extension of time to file
its papers. The Government’s proffered reason for this
extension is its need to obtain transcripts of a charging
conference held before the Court. It is my understanding
A-73
from Assistant United States Attorney Catherine Friesen that
the Government contends that one of the issues addressed by
the petition, to wit, that Mr. Dhinsa was not advised that it
was his constitutional right to testify at his trial, was
specifically addressed during the charging conference. It is
presumably the Government’s position those rights vere
knowingly waived by- Mr. Dhinsa.
KOZYRA & HARTZ, LLC
Hon. Edward R. Korman
August 5, 2003
Page 2
On May 16, 2003, I wrote to Your Honor on behalf of
Mr. Dhinsa objecting to any further delays inthe
Government’s filing of its response. I renew that objection
and ask that the Court grant no further extensions to the
Government to file a response based on an alleged lack of
documents. I ask the Court to draw an adverse inference to
the Government’s failures to promptly respond and the
Government’s continued failure to demonstrate that Mr.
Dhinsa was aware of his right to testify at the above trial and
waived that right knowingly. Mr. Dhinsa remains
incarcerated in the federal prison at Lompoc, California and
should not be compelled to continue confinement while the
Government seeks further extensions of time and delay in
responding to the application. At some point- and we submit
it is now, or not later than September 21, 2003 -. Mr.
Dhinsa’s right to due process of law is violated and redress is
appiopriate.
By copy of this letter, I am notifying Assistant United
States Attorney Catherine Friesen of our position with respect
to any further adjournments based on the Government’s
inability to find transcripts supporting its position that Mr.
A-74
Dhinsa was made aware of his right to testify at this trial and
knowingly waived same.
Respectfully submitted,
s/Barry A. Kozyra
BARRY A. KOZYRA
BAK:cml
cc: Catherine Friesen, Asst. U.S. Attorney
A-75
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
. inna,
UNITED STATES OF AMERICA+
02-CV-6156 (ERK)
- against - 97-CR-672 (ERK)
GURMEET SINGH DHINSA,
Defendant-Petitioner.
UNITED STATES’ MEMORANDUM IN
OPPOSITION TO THE DEFENDANT’S
MOTION PURSUANT TO 28 USC. §2255
ROSLYNN R. MAUSKOPF
United States Attorney
Eastern District of New York
147 Pienepont Sfreet
Brooklyn, New York. 11201
Ronald White
Catherine Frieen
Assistant United States Attorneys
(Of Counsel)
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INTRODUCTION
Defendant-Petitioner Gurmeet Singh Dhinsa has filed a post-
conviction motion, pursuant to Title 28, United States Code,
Section 2255, challenging his 1999 conviction after trial of
racketeering and numerous related offenses including
murder, murder conspiracy, kidnapping, mail fraud and
firearms violations. Specifically, Dhinsa was convicted of:
racketeering and racketeering conspiracy (Counts 1 and 2);
three counts of murder consp.racy (Counts 3, 7 and 14), two
counts of racketeering murder (Counts 4 and 8), two counts
of obstruction of justice murder (Counts 5 and 9), one count
of using and carrying a firearm during a crime of violence
(Count 10), one count of threatening to commit murder
(Count 11), one count of being a felon in possession of
firearms (Count /5), one count of mail fraud conspiracy
(Count 16), seven counts of mail fraud (Counts 17 through
22), one count of kidnapping conspiracy (Count 23), and one
count of kidnapping (Count 24). Dhinsa was acquitted on
eight counts (Counts 6, 12, 13, and 25 through 29). Dhinsa
was sentenced on October 15, 1999 to multiple life sentences
for the racketeering, murder and kidnapping charges.’ He his
currently incarcerated.
' 1 Dhinsa was sentenced to terms of life imprisonment on
Counts 1, 2, 4, 5, 8, 9, 23 and 24. In addition, he received
sentences of 120 months on counts 3, 7, 14 and 15, to be served
concurrently with the life terms and consecutive to one another.
Dhinsa was also sentenced to sixty months for his convictions on
Counts 11 and 16 through 22, also concurrent with the life terms
and consecutive to one another. Finally, Dhinsa received a
mandatory consecutive term of sixty months for his conviction
under 18 U.S.C. § 924(c).
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The convictions were affirmed on appeal, except for count
11 (threat to murder) and counts 23 and 24 (interstate kidnapping).
United States v. Dhinsa, 243 F.3d 645 (2d Cir. 2 2001). Those
counts were vacated and remanded and later dismissed after
the government elected not to retry Dhinsa.
In his Section 2255 petition, the defendant argues that
Gerald Shargel, Esq., Dhinsa’s highly experienced and able
trial counsel, forced Dhinsa not to take the stand at trial,
thereby depriving him of his right to testify, and prevented
him from calling witnesses in his own defense. As set forth
more fully below, these claims are without merit and should
be summarily dismissed. Alternatively, as discussed more
fully below, if the Court wishes to expand the record on the
“performance” prong of the ineffectiveness claim, it is
requested that a limited hearing be held for the sole purpose
of taking testimony on that issue.’
| As discussed below, Mr. Shargel has declined the government’s request
that he submit an affidavit to the court.
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STATEMENT OF FACTS
A. Introduction
Dhinsa was convicted of numerous offenses contained
in a multi-count racketeering indictment which charged
him with controlling a racketeering organization known
as the “Singh Enterprise.” The case was extraordinarily
complex, in part because of the government’s decision to
seek the death penalty against Dhinsa for his involvement
in the homicides charged in the indictment. The trial of
the case, including jury selection and the penalty phase,
spanned nearly four months. The government’s case
included nearly one hundred witnesses and hundreds of
exhibits.
The overwhelming nature of the government’s
evidence was confirmed by the jury at the conclusion of
the penalty phase of the case when it agreed unanimously,
in rejecting a “mitigating factor” advanced by Dhinsa,
that it had no lingering, or “residual,” doubt about
Dhinsa’s guilt. The jury’s assessment was shared by the
trial court, which stated at the conclusion of the case that
the evidence, particularly telephone and cell site records
introduced at trial, made Dhinsa’s guilt “a certainty.”
Dhinsa’s organization was built around a chain of 51
gasoline stations that he owned and operated throughout
the New York City metropolitan area under the name
“Citygas.” Dhinsa generated miffions of dollars in
fraudulent income for himself and other members of the
Singh Enterprise by ngging gasoline pumps at his stations
to overcharge Citygas customers, a practice commonly
known as “short-measuring.” The indictment also
~ charged with Dhinsa the murder of two men, Manmohan
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Singh and Satinderjit Singh,' in order to protect this
lucrative operation. At the time of his death in March
1997, Mamnohan was attempting to confront members of
the Singh Enterprise about their role in the disappearance
of his brother Kulwant Singh from a Citygas station in the
Brorix in.July 1995. Satinderjit was actively cooperating
with a New York City Police Department (“NYPD”)
investigation of Dhinsa and his organization.
Dhinsa was arrested on July 7, 1997, two weeks after
the murder of Satinderjit. At the time of the arrest,
officers uncovered evidence that Dhinsa was plotting to
kill another witness who was helping law enforcement
efforts prosecute members of the Singh Enterprise.
Dhinsa was initially indicted on July 19, 1997. Shortly
thereafter, the first of a series of superseding indictments
was returned by a grand jury in the Eastern District of
New York charging Dhinsa and other members of his
criminal organization with various crimes including
racketeering, murder, fraud, and kidnapping.
B. Summary of the Government’s Case
Dhinsa’s trial began with jury selection on November
29, 1998. Opening statements were given on January 4,
1999.
The government’s case included testimony from
several cooperating defendants. One of those accomplice
' Many of the men and women involved in the case
were members of the Sikh religion, in which nearly all
males adopt the last name “Singh.” For clarity, petitioner
will be referred to throughout the government’s
memorandum as Dhinsa.
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witnesses was Singh Enterprise hit man Marvin Dodson
who testified about his role in the murders of Satinderjit
Singh and Manmohan Singh. Dodson carried out, both
killings at Dhinsa’s order. Dhinsa’s motive in committing
the murders was to prevent the victims from cooperating
with an investigation of the Singh Enterprise and its
members. Dodson’s friend Evans Alonzo Powell also
testified about his participation as the driver in both
homicides and his involvement in a separate unsuccessful
plot to kill Sarvjeet Singh, a witness in a New York State
homicide case pending in 1997 against Dhinsa’s brother
Gogi Singh. The government also called a third
accomplice witness, Walter (“Jazz”) Samuels, who
described his participation in the June 1997 murder of
Satinderjit Singh, the plot to kill Sarvjeet Singh, and a
third plot he participated in with Dodson and Dhinsa to
kidnap Sarvjeet Singh’s friend Balwant Singh.
The government also called several other witnesses,
including a large number of former Citygas employees.
These witnesses, including former office employee
Satinderpal Minhas, testified in detail about the operation
of the pump-rigging system, describing how Citygas
gasoline pumps were electronically rigged to short
change customers. The government also called former
‘New York City Department of Consumer Affairs
(“DCA”) inspector Lawrence Woods, who testified about
how, in exchange for regular bribery payments from
Dhinsa, he tipped off the Singh Enterprise about DCA
inspections targeting Citygas stations and provided
Dhinsa with special DCA seals and stickers and
information about DCA enforcement operations.
In addition, the government called dozens of victims
of the Singh Enterprises’s criminal activities, including
Sarvjeet Singh, targeted for death by Dhinsa shortly
before his arrest in July 1997, Sarvjeet Singh’s friend
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Balwant Singh, victims of the Singh Enterprise’s short-
measuring activities, and Muchtir Ghuman, a restaurant
owner kidnapped and threatened with death by Dhinsa
and other members of the Singh Enterprise in November
1995. Several FBI agents and NYPD officers also
testified about evidence discovered during the
investigation. The government also called dozens of
custodial witnesses to describe documents and important
records obtai.ied during-the investigation. Hundreds of
physical exhibits were introduced including firearms
seized from Dhinsa’s Citygas headquarters at 276 North
Henry street, documents found in Dhinsa’s car on the lay
of his arrest, tapes and transcripts of prison telephone
calls made by Dhinsa, license plates, receipts, and
telephone records.
Among the most important documents introduced at
trial were cell site records for Dhinsa’s car telephone.
Those records showed where Dhinsa was located when he
placed or received calls on his car phone on June 18,
1997, the day of the murder of Satinderjit Singh. The
records demonstrated, among other things, that Dhinsa
was at the scene of the murder of Satinderjit Singh and
that, later that afternoon, he met with his hit team in East
New York.
C. Summary of the Defense Case
Throughout the trial, Mr. Shargel vigorously cross-
examined the government’s witnesses, confronting them
with, among other things, tape recordings, documents and
other evidence gathered by defense investigators. Marvin
Dodson, in particular, was savagely impeached with
evidence of his prior inconsistent, false and outright
perjurious statements to various law enforcement officials
and judges (T. 1312-1388, 1502-1509); his expectation of
receiving a lenient sentence because of his testimony
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against Dhinsa (T. 1397-1401, 1417-18); and his
preparation of an affidavit claiming that he was entitled to
receive a 25 million dollar award, again because he
testified against Dhinsa (T. 1401-1414). The defense also
introduced numerous recorded conversations between
Dodson and defense-spy Christopher Reese as evidence
of Dodson’s “bias, hostility and motive.” (T. 1421) In
those tapes, Dodson discusses, among other things, his
belief that he will be released from jail imminently, his
system for communicating outside the prison, and his
desire to receive a cash reward for his testimony. In one
tape, Dodson makes what the defense characterized as
veiled death threats against a defense investigator. The
other cooperating and civilian witnesses were similarly
impeached, with varying degrees of success, with
evidefice of their biases, hostility, prior inconsistent and
false statements, and motives to fabricate testimony
against Dhinsa.
Dhinsa, though Mr. Shargel, also called witnesses in
his own defense. Kawalajit Chandi testified, among other
things, that Ghuman, the victim of the kidnapping, did not
invest money in his own business and was not threatened
or coerced into giving up his share in the business. (Tr.
5619).
D. The Verdict & Appeal
The jury returned its verdict in the guilt phase of the
trial on March 2, 1999 convicting Dhinsa of, among other
things, the murders of Satinderjit and Manmohan Singh.
The trial then moved on to the penalty phase proceeding,
which took place on March 9, 1999. The jury returned its
penalty phase verdict on March 10, rejecting the death
penalty and recommending life imprisonment.
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On appeal, Dhinsa contended that the district court
erred by admitting hearsay statements made by the
victims of Dhinsa’ s crimes. He also claimed that: there
was insufficient evidence to convict him under 18 U.S.C.
§ 1959; the court erred by admitting testimony of the
girlfriend of one of the murder victims about a telephone
threat she received before the victim’s death; the
indictment was improperly amended; the evidence was
insufficient to convict him of kidnapping; a new trial was
warranted on the RICO counts because a number of
RICO predicates are invalid; there was insufficient
evidence to convict Dhinsa of coercion; the evidence was
insufficient to support Dhinsa’s conviction of weapons
possession; and that it was error to admit evidence seized
from Dhinsa’s automobile on the day of his arrest.
The Second Circuit rejected most of Dhinsa’ s.
claims, but vacated his conviction on the kidnapping and
threat to murder charges and remanded them for a new
trial. United States v. Dhinsa, 243 F.3d 635 (2d Cir.
2001). The Supreme Court denied Dhinsa’s petition for a
writ of certiorari on October 1, 2001. The government
elected not to retry Dhinsa on the open counts, which
were subsequently dismissed with prejudice.
E. Additional Facts Relevant to This Section 2255
Petition
In September of 2002, Dhinsa filed a petition for the
issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 in the United States District Court for the Central
District of California, challenging the instant conviction.
On September 23, 2002, the court dismissed that petition
without prejudice for lack of jurisdiction and directed
Dhinsa to re-file in the sentencing court. Dhinsa then filed
the instant petition in the Eastern District of New York.
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Dhinsa claims ineffective assistance of counsel based
upon the alleged deprivation by his counsel of Dhinsa’s
right to take the stand. Specifically, Dhinsa claims that he
repeatedly told his counsel, Gerald Shargel, that he
wished to testify and that he was told “hold on” or “lets
see how it goes.” Dhinsa Aff. 9. Dhinsa states that, the
night before the trial ended, he repeated his wish to testify
and was told “we’ll see tomorrow.” Id. 912. At that time,
Dhinsa claimed to be unaware that the decision to testify
was his own. According to Dhinsa, “the next morning, I
was told ‘we don’t want you to testify,” and he felt “he
had no choice but to accept” that decision. Id. § 14.
Dhinsa states that, if called to testify on his own behalf,
he would have told the jury that he did not know the
murder victims, or Balwant Singh or Sarvjeet Singh and
that the case against him “was the product of government
witnesses who had lied and exaggerated their testimony.”
Id. § 21.
Dhinsa further claims that defense counsel was
ineffective by refusing to call witnesses on his behalf who
would ha corroborated his testimony. Dhinsa Aff. Id. 4
15, 18. Specifically, Dhinsa identifies Walter Johnson,
who purportedly would have testified about his
conversations with cooperating witness Marvin Dodson,
and Surander Parmer, who would have testitied that he
never delivered threatening messages to Balwant Singh.
Dhinsa attaches an affidavit from Walter Johnson, dated
December 1998, in which Johnson claims that Dodson
told him he identified Dhinsa because the federal agents
“just wanted to talk about [him]” and that Dodson saw
Dhinsa as his way out of prison. See Johnson Aff. Dhinsa
also attaches a memorandum from “JL,” (which may
have been authored by Jeffrey Lichtman, one of his
lawyers), regarding an interview with Surander Parmer,
see Parmer Memo, exhibit F, and a transcript of a phone
conversation between Margie Jackson and Christopher
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Reese, Exhibit. In his counsel’s affidavit, Dhinsa claims,
based on the memorandum and the transcript, that both
Parmar and Jackson would have testified favorably to him
and that Mr. Shargel was remiss in not calling them to
testify. SeeKozyra Aff. J] 19-20.
Mr. Shargel declined the government's request that he
submit an affidavit to the Court detailing his discussions
with Dhinsa regarding his right to testify.
ARGUMENT
PETITIONER’ S CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL IS MERITLESS
A. Petitioner’s Claim That He Was Deprived of
His Right to Testify Should Be Rejected Because
. He Cannot Demonstrate Prejudice
The right of a defendant to take the stand in his own
defense is of constitutional dimension, and a defendant’s
establishment through particularized and credible
evidence that his defense counsel unethically deprived
him of this right, if prejudice resulted, may support a
finding of ineffective assistance of counsel. Brown Vv.
Artuz, 124 F.3d 73, 80 (2d. Cir. 1997). Ona collateral
attack such as the present one, however, in which a
defendant seeks to upset a conviction affirmed on appeal,
the burden of proving such a deprivation “lies with the
petitioner.” Whitaker v. Meachum, 123 F.3d 714, 714 (2d
Cir. 1997); see Triana v. United States,205 F.3d 36, 40
(2d Cir. 2000).
Specifically, any claim by a defendant that he either
was not informed of his right to testify, or that defense
counsel overrode his decision to testify, “must satisfy the
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two prong test established in Strickland v. Washinton,
466 U.S. 668 (1984).” Brown v. Artuz, 124 F.3d at 79. As
the Second Circuit summarized:
Under Strickland, a defendant must establish both that
counsel’s performance was so defective that “counsel
was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment,”and that
counsel’s errors were “so serious as to deprive the
defendant of a fair trial. . . .“‘ To satisfy the first, or
“performance,” prong, the defendant must show that
counsel’s performance was “outside the wide range of
professionally competent assistance,”. . . and to
satisfy the second, or “prejudice,” prong, the
defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional
errors, V the result of the proceeding would have been
different.”
Id.79-80.
Judged by these standardsDhinsa’s claim should be
rejected. Dhinsa has satisfied neither the “performance”
nor the “prejudice” prong required by Strickland. First,
with regard to the “performance” prong, to succeed on a
claim that counsel denied a defendant his right to testify,
the defendant must establish that counsel coerced that
decision or otherwise denied him his right to testify
through some deceit or an unprofessional misstatement of
the law. See United States v. Aguirre, 912 F.2d 555, 562-
63 (2d Cir. 1990); Campos v. United States, 930 F. Supp.
787,.792-93 (E.D.N.Y. 1996). No ineffective assistance
claim lies where defense counsel merely advises a client
not to testify and the client takes that advice. Aguirre, 912
F.2d at 562-63; Campos, 930 F. Supp. at 792 n.6.
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In this case, Dhinsa’s sole “proof of his trial
counsel’s alleged unethical behavior is his affidavit that
he did not understand his right to testify and that his wish
to testify was simply disregarded by defense counsel.
This self-serving statement is barely sufficient to raise an
issue under Strickland. As one Court aptly noted, “‘it is
simple enough after being convicted for the defendant to
say, ‘My lawyer wouldn’t let me testify.’ Therefore I’m
entitled to a new trial.” Underwood v. Clark, 939 F.2d
473, 475 (7th Cir. 1991). The Second Circuit has directed
that, when this type of generic claim is made, the trial
court should conduct a limited hearing at which letters,
documentary evidence or other affidavits can be received
in order that the claim’s veracity can be evaluated in light
of the entire record. Chan v. United States, 250 F.3d 79,
86 (2d Cir. 2001)(rejecting defendant’s “highly self-
serving and improbable assertions” that defense counsel
would not let him testify after reviewing defense
counsel’s affidavit). The court is not required to hold a
testimonial hearing if the expanded record adequately
demonstrates that the claim is baseless and is expressly
permitted to use its own kntwledge of the case in
evaluating the evidence. } (commenting that Judge
Glasser “was intimately familiar with the trial
proceedings and the events and circumstances
surrounding them.’’)
Here, given Mr. Shargel’s distinguished reputation,
vigorous defense of Dhinsa’ and lengthy history of
' With regard to Mr. Shargel’s overall performance, Judge
Korman remarked that “it was the best defense of a criminal
case that I’ve seen in my whole time, not only on the bench but
since I’ve started watching in 1970 ... It was just brilliant.
Brilliant. I don’t think anybody could have done more for him
[Dhinsa] than you did.” (Tr. 7035).
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representing him on other matters, it is highly unlikely, if
not impossible, that Dhinsa’s claims are true. It is far
more likely that Dhinsa reasonably and knowingly took
his counsel’s advice not to testify — a sound decision in
light of Mr. Shargel’s success at impeaching the
government’s witnesses and knowledge of the wealth of
material which the government had amassed for purposes
of impeaching Dhinsa. Nonetheless, because Mr. Shargel
refuses to provide an affidavit detailing his conversations
with Dhinsa on the matter, the Court may find that a
testimonial hearing is required to resolve the issue fully.
Nonetheless, even if the record is not sufficient on the
“performance” prong to evaluate the credibility of _
defendant’s claim, he has not even attempted to make out
the “prejudice” prong, which is required to show
ineffective assistance of counsel. A defendant who claims
that he was unethically denied his right to testify in his
own defense must set forth the facts that he would have
testified to, and establish prejudice by showing that had
he been allowed to present these facts there was a
“reasonable probability that the verdict would have been
different.” Brown v. Artuz, 124 F.3d at 80-81.
In this case, it is at the very least improbable, and
most likely impossible, that Dhinsa could have credibly
rebutted the litany of witnesses, including three
coconspirators, who described first hand Dhinsa’s
multiple murderous endeavors. The cooperating witnesses
were corroborated by, among other things: (1) the
admission of the hearsay statements of the murder
victims, pursuant to United States v. Mastrangelo, 693
F.2d 269 (2d Cir. 1983), which demonstrated that Dhinsa
ordered Manmohan killed in order to prevent him from
becoming a witness regarding the kidnapping of his
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brother and that, similarly, he ordered Satindeijit’s
murder because Satinderjit was actively assisting law
enforcement to expose Dhinsa’s lucrative pump-rigging
scheme and to locate Dhinsa’ s fugitive-brother, Gogi; (2)
the evidence of cell phone and cell site records which
definitely demonstrated Dhinsa’s whereabouts prior to,
during and after the murder and which were entirely
consistent with the cooperators’ testimony; and (3)
abundant other evidence, including a list of potential
victims and the home address of one of those potential
victims, recovered during the search of Dhinsa’s car.
In the face of the overwhelming evidence presented at
trial — evidence that prompted the trial judge to remark
that Dhinsa’s guilt of the murders was a “certainty” and
left the jury with no lingering “residual doubts” —
Dhinsa’ s denials on the stand would have been easily
discredited and could, in a death penalty case, been held
against him by the jury in the penalty phase.
In addition, Dhinsa’s current denial in his affidavit
that he “knew” Satinderjit or Manmohan, see Dhinsa Aff.
415-16, is particularly irrelevant in light of the
overwhelming trial evidence that he knew of them, and
the complete lack of evidence that they were personally
acquainted. Furthermore, his claims regarding Balwant
Singh, see Dhinsa Aff. { 18, are also irrelevant in light of
the Second Circuit’s decision te vacate that count of
conviction. Finally, although Dhinsa now claims that his
teimony would have shown that the case against him
“was the product of government witnesses who had lied
and exaggerated their testimony,” that very argument was
ably and repeatedly made by Mr. Shargel through his
highly effective cross exantinations and was emphatically
rejected by the jury.
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Accordingly, Dhinsa has not established the
“prejudice” prong required by Stnckland requiring the
rejection of his claim of ineffective assistance of counsel.
B_ Counsel Was Not Ineffective For Failing
To Call the Witnesses Identified by Petitioner
Next, Dhinsa complaitis that counsel failed to call
certain witnesses on his behalf. The Supreme Court has
stated that ‘Tcounsel has a duty to make reasonable
investigations or to make a reasonable decision that
makes particular investigations unnecessary” and that the
reasonableness of counsel’s judgment must be evaluated
with “a heavy measure of deference.” Strickland, 466
U.S. at 691. Moreover, “[t]he decision whether to call any
witnesses on behalf of the defendant, and if so which
witnesses to call, is a tactical decision of the sort engaged
in by defense attorneys in almost every trial,” and, as a
tactical decision, if it is reasonably made it “will not
constitute a basis for an ineffective assistance claim.”
United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.
1987). —
In this case, Dhinsa was clearly defended by a team,
led by Mr. Shargel, that spared no expense in hiring
investigators, finding witnesses, pursuing leads and
creating material to use in its case and on cross-
examination. The decision to employ Christopher Reese
to engage prospective government witnesses in
conversations about the case proved to be a particularly
effective strategy. Viewed through this’ prism, Dhinsa’s
claim that trial counsel was ineffective for failing to call
Walter Johnson, Surander Parmer and Margie Jackson
should be summarily dismissed. Dhinsa has failed to
identify fully the subject matter of their potential
testimony and thus cannot show how he was prejudiced
by his counsel’s alleged deficiency. .; Alexander v.
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McCotter, 775 F.2d 595, 602-03 (Sth Cir. 1985). For
example, assuming that Walter Johnson would have
testified as he set forth in his affidavit that Dodson told
him that he implicated Dhinsa because the “feds” wanted
him “bad,” see Johnson Aff. ¥ 11, such testimony would
hardly have negated the overwhelming evidence of
defendant’s involvement in the murder plots. Rather, such
testimony would have been plainly cumulative, given Mr.
Shargel’s highly effective cross-examination of Dodson
utilizing Dodson’s own taped conversations with
Christopher Reese. In those tapes, Dodson makes far
more damaging claims than those purportedly made to
Johnson. Moreover, Johnson, a convicted felon serving a
life sentence for witness tampering, robbery and narcotics
distribution, see United States v. Johnson, 181 F.3d 83,
1999WL 357835 (2d Cir. 1999)(attached as Government
Exhibit 1), would hardly have been a credible witness. In
short, the decision not to call Johnson was clearly a
rational’, strategic choice.
Similarly, Dhinsa’s claim that Shargel was ineffective
for failing to call Surander Parmer or Margie Jackson
falls far short. Notably, Dhinsa submits an affidavit from
neither potential witness, suggesting the likelihood that
they would actually have testified to the facts set forth in
the memorandum and telephone call, respectively, was
remote. Indeed, Surander Parmer, who invoked his Fifth
Amendment rights and refused to testify before the grand
jury, (see government exhibit 2), would have been
unavailable as a witness. In any event, the fact that the
Second Circuit vacated the count of conviction to which
his testimony would have pertained — the
communication of the threat to murder Balwant Singh —
renders his potential testimony completely irrelevant.
Finally, as defense counsel knew from receiving the 3500
material, Margie Jackson would have provided testimony
extremely damaging to Dhinsa, as she placed his car near
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the scene of the Satinderjit murder in a manner consistent
with Dodson’s testimony. See Government Exhibit 3.
Dhinsa’s affidavit does not identify how, if at all, her
testimony would have been helpful to him. While
Dhinsa’s current counsel asserts that Jackson “would
have offered testimony that [Dhinsa] was not present at
the scene,” see Kozyra Aff. J 19, the transcript attached
to the motion of the conversation between Jackson and
Christopher Reese does not support that assertion.
Moreover, had she testified to that effect, she would have
been brutally impeached by her prior statements to
government investigators — a fact of which Mr. Shargel
was well aware. In light of the above, electing not to call
Margie Jackson or Surander Parmer was clearly a
reasonable, strategic choice.
In short, Dhinsa’s trial counsel provided him with
effective assistance and the jury’s verdict should not be
disturbed.
Conclusion
For the reasons outlined above, it is respectfully
requested that the defendantpetitioper’s petition pursuant to
18 U.S.C. § 2255 should be summarily denied in all respects.
Alternatively, if the Court wishes to eSand.the record on the
“performance” prong, it is requested that a limited hearing be
held for the sole purpose of taking testimony on that issue.
Dated: Brooklyn, New York
September 22, 2003
Respectfully submitted,
ROSLYNN R. MAUSKOPF
United States Attorney
Eastern District of New York
147 Pierrepont Street
Brooklyn, New York 11201
= ____. BEST AVAILABIF PPY a
Catherine Friesen
Ronald White
Assistant U.S. Attorneys
(Of Counsel)
181F.3d83 (Table)
Unpublished Disposition
(Cite as: 181 F.3d 83, 1999 WL 357835 (2nd Cfr.(N.Y.)))
H
NOTICE: T
THIS IS AN UNPUBLISHED OPINION.
(The Courts decision is referenced in a “Table of Decisions
Without Reported Opinions” appearing in the Federal
Reporter. Use Fl CTA2 s 0.23 for rules regarding the citation
of unpublished opinions.) —
United States Court of Appeals, Second Circuit.
UNITED STATES of America, Appellee,
Vu
Walter JOHNSON, also known as King Tut, also
known at Tut, Defendant-Appellant.
No. 9 8-1455.
May 20, 1999.
Appeal from the United States District Court for the Eastern
District of New York (Block, J.).
Kevin lames Keating, Esq., Garden City, for Appellant.
Kelley Anne Moore, Assistant United States
Attorney (Zachary W. Carter, United States Attorney
for the Eastern District of New York) Brooklyn, for
Appellee.
A-95°
Present: WALKER, Jr., POOLER, CJ., and MOTLEY, [*]
D.J.
FN* The Honorable Constance Baker
Motley, Seoior Judge of the United States
District Court for the Southern District of
New York, sitting by designation.
**] UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED AND
DECREED that the judgment of said district court be and it
hereby is AFFIRMED.
Defendant-appellant Walter Johnson appeals from th LiJy 3Q
1998 judgment of the district court convicting him, following
a jury trial, of one count of conspiracy to obstruct interstate
commerce by robbery, in violation of 18 U.S.C. § 795/; one
count of attempt to obstruct interstate commerce by robbery,
in violation of 18 U.S.C. § 1951; one count of conspiracy to
possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846 and § 841(b)(1)(A); one count of attempt to
possess.:with intent to distribute cocaine, in violation of 21
U.S.C. § 846 and § 841(b)(1)(A); and one count of witness
tampering, in violation of 18 U.S.C. § 1512. The district
court sentenced Johnson to mandatory life imprisonment on
three of the counts of conviction. pursuant to 18 U.S.C. §
3559(c)(1) (the ‘Three Strikes” statute) and two terms of life
imprisonment for the other two convictions. All of Johnson’s
life sentences are to run concutrenfly.
Johnson contends that there was insufficient evidence to
support the jury’s verdict with respect to the witness
tampering count; that he was denied a fair trial because the
A-96
district court failed to give the jury a multiple conspiracies
charge; and that the Three Strikes statute is unconstitutional.
We consider each of these arguments in turn.
First, we find that there was sufficient evidence to support the
jury’s verdict on the witness tampering charge. The jury
. found Johnson guilty of witness tampering for his actions on
or about February 5, 1996. The evidence at trial shoed that,
on that date, Johnson and others robbed Crystal Winslow of a
mink coat and earrings. This was the third robbery of
Winslow by the same group, the other two robberies having
had as their object sotne 30 kilograms of cocaine allegedly in
the possession of Winslow’s boyfriend. Winslow testified
that, during the February 5 robbery, Johnson gave her “a list
of demands of things to do and things not to do ... like get in
my vehicle and to drive and don’t look back and don’t call
the cops, don’t tell the police, and threatening me and my
mother and things like that”
The witness tampering statute prohibits the knowing use of
“intimidation or physical force” or threats to “influence,
delay, cir prevent the testimony of any person in an official
proceeding.” 18 U.S.C. § 1512(b)(l). To prove witness
tampering, the government need not establish that the
defendant expressly stated that he would do harm; it is
sufficient if the defendant’s words or conduct were_designed
to arouse fear of harm. See United States v. Jol3n, 968 F.2d
208, 211 (2d Cir.1992). Nor must the government prove that
the defendant knew of official proceedings or potential
proceedings or that official proceedings were pending at the
time of the alleged intimidation. See 18 U.S.C. § 1512(e)(1);
United States v. Romero, 54 F.3d 56, 61-62 (2d ir.199S).
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: A-97
181 F.3d 83 (Table)
(Cite as: 181 F.3d 83, 1999 ‘WL 357835, **1 (2nd
Cir.(N.Y.)))
See also United States v. Gabriel, 125 F.3d 89, 103 (2d
Cir.1997).
**2 Here, the jury determined that Johjason’s actions were
intended to arouse fear of harm. We see no reason to disturb
that finding. Although Johnson contends that his remarks
during the February 6 robbery “amounted to nothing more
than the typical exhortation not to disclose the crime
cu77elttly being committed,” the jury reasonably could have
inferred. that Johnson’s actions were designed to arouse far
bf harm in Winslow should she cooperate with the police
regarding the two previous robberies. See United States v.
Tocco, 135 F.3d 116, 127 (2d Dir.), cert. denied sub noin.
Ferranti v. United States, 523U.S. 1096, 118 S.Ct. 1581, 140
L.Ed.2d 795 (1998) {circumstantial evidence sufficient to
support witness tampering conviction).
Second, we turn to Johtuon’s argument that he was denied a
fair trial on account of the district court’s failure to sua
sponte give a multiple conspiracies charge. Johnson failed tO
request such a charge at trial and to raise this issue below.
Accordingly, he must demonstrate that the district court’s
failure to give a multiple conspiracy charge constituted plain
error. See Fed.R.Crim.P. 52(b); Gabriel, 125 F.3d at 96-. To
establish plain error, a defendant must show “(1) error (2)
that is plain [ ](3) that affects substantial rights,” Gabriel,
125 F.3d at 9, and (4) that “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123
L.Ed.2d 508 (1993) (internal brackets omitted). Even if plain
rror is established, reversal lies within the discretion of the
A-98
app ellata court. See United States v. Gonzalez 110 F.3d936,
945 (2d Cii. 1997).
Johnsn has not established error, let alone plain error. A
multiple conspiracies chargo is generally appropriate where
the government has alleged a single, overarching conspiracy
but a reasonable jury could find the existence of smaller,
independent conspiracies, some of which the defendant did
not participate in. See, e.g., United States v. Johansen, 56
F.3d 347, 350-51 (2d Cir. 1995). Here, the indictment alleged
three separate conspiracies, (1) to disturb interstate commerce
through robbery; (2) to possess with intent to distribute
narcotics; and (3) to commit witness tampering--all of which
Johnson was alleged to have been a central player in. We find
no basis for a multiple conspiracy charge in this case.
Third and finally, we turn to Johnson’s constitutional
argument with respect to the Three Strikes statute, which he
raises for the first time on appeal. This statute imposes
mandatory life imprisonment on a defendant convicted of a
serious violent felony, if that defendant has been convicted
on separate occasions of two or more “serious violent
felonies.” See 18 U.S.C. § 3559(c)(1)(A)(i). The statute both
specifies certain federal crimes that qualify as “serious
violent felonies” and provides a general definition for other
crimes that qualify.
**3 Johnson contends that the statute violates the Due
Process Clause because it places the burden on a criminal
defendant to prove that his crimes do not qualify as “serious
violent felonies.” Johnson also argues that he was improperly
denied a hearing on whether his crimes in this case
constituted serious violent felonies within the meaning of the
statute. Johnson raised only the latter argument below.
A-99
Because Johnson failed to raise the unconstitutionality
argument below, he must demonstrate plain error. This he
cannot do. To establish plain error, a defendant must
establish, inter alia, that the error was “plain.” See Olano,
507 U.S. at 735. “[E]rror is plain if it is clear or obvious
under current law ... [or] so egregious and obvious as to make
the trial judge and prosecutor derelict in permitting it, despite
the defendant’s failure to object.” United ‘tates v. Gores 154
F.3d 34, 42-43 (2d Cir.1998) (intemal quotation marks and
citations omitted). We do not find that the district court’s
failure to sua sponte find unconstitutional the Three Strikes
statute’s burden structure constituted ‘plain” error. There
have been no decisions in this circuit on this issue, and other
circuits have only begun to consider it See, e.g., United States
v. Wicks, 132 F.3d 383, 388-89 (7th Cir.1997) (finding no due
process violation in placing burden on defendant); United
States v. Kaluna, 152 F.3d 1069 (9th Cii.) (finding due
process violation), vacated and rehg in -banc granted 161
F.3d 1225 (9th Cir.1998). Accordingly, we do not find that
the alleged error was plain. See Gore, 154 F.3d at 43 (noting
diffiauity of proving plain, error where tbis.circuit has not
spolcn on an issue and there is a split in other circuits).
With respec to the district court’s denial of a hearing on the
qualifying offenses, we find that there was no error. While a
defendant has a night to be . haard before a district cmirt
determines a sentencing fact, that opportunity ntuy be limited
to mitten
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* 181 F.3d 83 (Table)
(Cite as: 181 F.3d 83, 1999 WL 37835, **3 (2nd Cir.(N.Y.)))
submissions if the judge properly views the matters as not
reasonably in dispute. See United States v. Garcia, 900 F.2d
571, 574 (2d Cir.1990). See also United States vy. Oberle, 136
F.3d 1414, 1423 (10th Cir.), cart. denied, 525 U.S. 885, 119
A-100
S.Ct. 197, 142 L.Ed.2d 161 (1998)(hearing warranted under
Three Strikes Statute only where defendant “tenders
&vidence to deny the seriousness of the former convictions
or to deny that the prior cSnvictions pertained to him”)
Here, Johnson did not dispute that he had committed two
prior felonies that constituted “serious violent felonies” under
the Three Sirikes statute. He sought a hearing solely to
establish that his convictions in this case dict not qualify as
violent felonies within the meaning of the statute. To that
end, Johnson proposed to call the government’s main
witness, Crystal Winslow, to review her testimony regarding
the circumstances of the crimes of which the jury convicted
him. The district court found that there was nothing to be
“accomplished by recalling” this witness to the stand. In
these circumstances, we find that there was no error in
denying Johnson ahearing.
**4 For the foregoing reasons, the judgment of the district
court is AFFIRMED.
181 F.3d 83 (Table), 1999 WL 357835 (2nd Cir.(N.Y.)),
Unpublished Disposition
END OF DOCUMENT
Copr. © West 2003 No Claim to Orig. U.S. Govt. Works
A-101 ;
LAW OFFICES OF
MURE’ & CARONE, P.C.
32 COURT STREET, Suite 1800
BROOKLYN, NEW YORK 11201
(718) 852-9100
FACSIMILE (718) 246-4661
Joseph Mure Jr.
Frank V. Carone Jr.
of Counsel
Elliot F. Bloom
Frank R. Seddio
Martin Pollack
Michael Utilla AUGUST 6 1998
Joseph Vasile
UNITED STATES ATTORNEY’S OFFICE
EASTERN DISTRICT OF NEW YORK
ONE PIERREPONT PLAZA
BROOKLYN, NEW YORK 11201
ATTN: AUSA KRIS KOPPEL
RE: SURANDE PARMAR
DEAR SIRS:
Please be advised that our office has been retained to
represent Mr. Surander Parmar with respect to your request to
have him testify before a Grand Jury. In an effort to
investigate and gather all relevant facts, I am requeting that
you inform me as to whether or not my client has made any
statements to law enforcement and provide us with the
substance of any such statements.
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If and when all statements are provided, I will then be
able to counsel my client to the best of my abilities.
In the interim, since it is our understanding that Mr.
Parmar may be a target of investigation if called before a
Grand Jury, Mr. Parmar would invoke his Fifth Amendment
Privilege Against Self-Incrimination.
Please feel free to contact me if you have any
questions, or if you need to discuss this matter any further.
Very truly yours,
s/Joseph Mure, Jr.
Joseph Mure, Jr.
JM:lag
A-103
Ft -302 (Rev. 16-6-95)
a i
FEDERAL BUREAU OF INVESTIGATION
116-NY-262801 Date of transcrption 11/18/97
-MARGIE JACKSON, Brooklyn, New
York, telephone number was interviewed at the
United States Attorney’s Office, Eastern District of New
York, Brooklyn, New York. Also present duringthe interview
was Assistant United States Attorney (AUSA) BENTON
CAMPBELL. After being advised as to the identities of
AUSA CAMPBELL and Special Ageht (SA) JAMES
GLYNN, JACKSON provided the following information:
JACKSON first met MARVIN DODSON when she
was approximately 18 years old. JACKSON had met
DODSON through mutual friends. JACKSON had dated
DODSON for a short period of time. JACKSON stated that
she was with DODSOL when he was shot several years ago
at the RED HOOK HOUSES in Brooklyn, New York.
JACKSON stated that she was aware that DODSON was
dealing in narcotics, however, she had no involvement with
DODSON’s business JACKSON stated that she subsequently
lost contact DODSON for approximately five years until she
ran into him 1997
After five years, JACKSON saw DODSON on
Father’s Day 1997, while she was driving down Atlantic
Avenue, Brooklyn’ York. JACKSON stated she stopped the
vehicle and began to talk. to DODSON. JACKSON stated
that they talked for approximately one hour and after
exchanging greetings, DODSON gave JACKSON his pager
number. JACKSON advised that she subsequently talked to
DODSON on the phone and both agreed to meet at the
-
A-104 -
McDONALD?’ S Restaurant on Atlantic Avenue. JACKSON
advised that she arrived at the MODONALD’S Restaurant
and waited for DODSON for approximatelr 45 minutes.
JACKSON advised that the reason she was, meeting
DODSON at the McDONALD’s Restaurant was to’ rekindle,
a relationship. JACKSON stated that she contacted
DODSON from a pay phone at the MCDONALD’s
Restaurant. Shortly thereafter, DODSON arrived driving a
blue Suburban.
DODSON asked JACKSON to follow him in her vehicle.
JACKSON stated that they drove for approximately three city
blocks. DODSON parked the Suburban and got into
JACKSON’s 1985 Oldsmobile. DODSON informed
JACKSON that he had purchased a car and he wanted to
show JAdCSON the vehicle. DODSON drove JACKSON’S
dar because she was not familiar with the streets. JACKSON
stated that DODSON had driven to Queens in close
proximity to a train station. DODSON had circled the area
looking for a parking spot. JACKSON stated that it was
around lunchtime when she told DODSON that she was
hungry. DODSON stated that he knew of a store which made
great turkey sandwiches. JACKSON stated that she went into
the sub shop and ordered a sandwich. While in tne shop,
JACKSON used the ladies room. JACKSON further advised
that she exited the store and went towards the right and
around the corner where DODSON was parked near a pay
phone. JACKSON recalled that the location where DODSON
had parked the vehicle was in the rear of a children’s
clothing store. JACKSON walked up to the car and got into
the passenger seat. JACKSON asked DODSON if he wanted
part of her sandwich DODSON took a small portion of the
sandwich As they sat in the vehicle, they talked about people
that they knew Thereafter, JACKSON stated that she was
going to finish her sandwich and leave DODSON replied that
she could leave .-. JACKSON stated that she believed
DODSON was a little nervous and was constantly looking
A-105 -
around. JACKSON stated that DODSON was not paying
attention to her while they sat in the vehicle. DODSON drove
approximately three blocks before he pulled over and gave
JACKSON a kiss and exited the vehicle. JACKSON advised
that she lifted the arm rest and slid over to the driver’s side of
the vehicle.
JACKSON was questioned whether she ever observed
DODSON in possession of a firearm. JACKSON stated that
she observed DODSON with a firearm in his waist band
while in Brooklyn. JACKSON advised that it was no concern
to her because she always knew DODSON had carried a
firearm from previous years.
JACKSON advised that while eating her sandwich
she observed a beat up white van drive by on two - three
occasions. JACKSON stated that she observed a driver and
passenger in this white van. JACKSON stated that she also
observed another white van which an individual had parked
arid got out of the vehicle and walked away.
JACKSON also oberved a 4-door black luxury car
with tinted windows. JACKSON stated that she believed this
luxury car was either a Lexus or Maxima. JACKSON stated
that this vehicle was parked approximately four car lengths
ahead.
JACKSON stated that she also observed a guy
painting a picture on a garage or house at this location.
After JACKSON had dropped DODSON off and she
slid over to the driver’s side, she drove to the corner and
passed the beat up white van. JACKSON stated that at this
intersection she made a right hand turn and went
approximately two block.
A-106
As JACKSON was seated at a light at this location, the beat
up white van caine u from behind and began beeping the
horn. JACKSON advised that it appeared that this van was
trying to get by her. JACKSON advised that she heard an
individual yell ‘‘Why don’t you move out of the way?” At
the seine time, JACKSON-hears ‘-.- DODSON knocking at
the passenger side of her vehicle. DODSON opens the
passenger door and jumps into the vehicle. :At this point,
DODSON is out of breath. As DODSON attempted to catch
his breath, he told JACKSON to follow the black car.
JACKSON -advised : that this black car was the same black
luxury car which she noticed parked while she was eating her
sandwich. JACKSON stated that she drove several blocks
when she turned and followed a street which was located
under the elevated train line. JACKSON stated that she
continued to drive until she followed the black car into a gas
station.
The individual that drove the black car approached
DODSON as he exited JACKSON’s vehicle. DODSON
walked towards the back of JACKSON’s vehicle and began
to lean on the trunk as he talked to this individual. JACKSON
advised that throughout this whole time she was looking at
DODSON and this individual through the rearview mirror.
JACKSON stated she also observed a white van inside the
bay area of the gas station. JACKSON stated that she
observed two Black males and an Indian male inside the bay
area. JACKSON stated that the Indian guy appeared scared as
he pulled the garage door down half way JACKSON stated
that while DODSON was talking to the individual who drove
the black car, It appeared that DODSON had passed
sothething to this individual. JACKSON further advised that
the individual who drove the black car was also an Indian
male.
A-107
JACKSON advised that when they returned to
Brooklyn, DODSON no longer had the gun. JACKSON
stated that she knew this because when she hugged
DODSON she no longer felt a gun on his body.
JACKSON advised that as they left the gas station, she
recalled making a left hand turn and going approximately
three or four blocks and hitting the highway. DODSON asked
JACKSON to take him back to where he had dropped off his
car. DODSON directed JACKSON to the inter-borough and
dropped him off at his home. As DODSON exited the
vehicle, he told JACKSON to page him later. JACKSON
stated that she got out of her vehicle and hugged
DODSON. JACKSON reiterated that she did not feel agun at
this. time.
JACKSON was questioned regarding her response
when DODSON reappeared at her vehicle after she had just
dropped him off. JACKSON replied that she commented,
“What the hell are you doing here?” DODSON made no
comment to JACKSON. JACKSON reiterated that at this
point DODSON was breathing heavy and appeared out of
breath. JACKSON stated that it was not out of character for
DODSON not to answer her question.
JACKSON advised that on the following day she met
DODSON on Marcy Avenue. JACKSON stated that she had
previously spoken to DODSON about owing back rent.
When she met IDODSON, DODSON took out a sum of
money and counted it and gave JACKSON $500.00 in $50.00
denominations. JACKSON took a small portion of the money
she received from DODSON and purchased beer for
everyone who .was hanging out on Marcy.Avenue.
JACKSON further advised that she used $420.00 to pay the
rent and $150.00 to pay her phone bill. JACKSON stated that
the proceeds from DODSON and money she had saved went
to pay the rent and phone bill.
A-108
Approximately three or four days later, JACKSON saw
.DODSON as DODSON drove through Red Hook.
JACKSON was sitting outside her residence with several
girlfrietds. JACKSON thanked DODSON for helping out
with her expenses. DODSON mentioned to JACKSON that
there was some case pending and that he may be going to jail.
JACKSON stated that that was the last contact she had with
DODSON, however, she did attempt to page him on several
other occasions, but he never returned her page.
JACKSON advised that DODSON had a reputation as
a drug dealer. JACKSON stated she never personally
observed DODSON dealing drugs however, word on the
street was that he was involved in dealing. JACKSON further
stated that she knew DODSON to carry a firearrn on a
regular baais.
JACKSON advised that she was first introduced to an
individual known as JAZZ by DODSON when they were
drinking beer on Marcy Avenue. DODSON told JACKSON
that JAZZ was his cousin.
JACKSON advised that she had no knowledge of what
occurred on the streets in Queens when she drove DODSON.
JACKSON stated she was contacted by Detective BRIAN
QUINN, Queens Homicide Squad, who displayed a photo
spread. JACKSON advised that she identified the Indian
male and initialed the picture in the photo spread. JACKSON
reiterated to this day she is unaware of what occurred in
Queens, however, assumes that DODSON may have killed
somebody because of the contact with Queens Homicide.
JACKSON further advised that the license plates on the
beat up white van were Pennsylvania plates.
A-109 -
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
Against MEMORANDUM
AND ORDER
GURMEEET SINGH DHINSA, CV-02-6156(ERK)
Defendant-Petitioner. CR-97-0672(ERK)
Korman, Ch. J
Petitioner’s trial counsel, Gerald Shargel, Esq. is
directed to file an affidavit responding to the ineffective
assistance of counsel claim raised in the petition.
SO ORDERED:
s/Edward R. Korman
Edward R. Korman
United States District Judge
Brooklyn, New York
September30,2003
~
A-110
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
<anscessssitsnsanetinsetppaeia nn x
United States of America
V. CV-02-6156
Cr-97-0672
Gurmeet Singh Dhinsa AFFIDAVIT
nocinseicinsnenenainesttda aa x
GERALD L. SHARGEL, being duly sworn, deposes and
says:
1. Iam an attorney admitted to practice in the Eastern
District of New York since January 8, 1971. I have
been admitted to practice in the State of New York
since December of 1969. Since my admission, I have
defended at trial more than 100 federal criminal cases.
2. I was the lead attorney for Gurmeet Siugh Dhinsa,
defendant in the above-captioned matter, trying his
case to a jury in 1999. During trial, my co-defense
counsel were David Rulinke, Jeffrey Lichtman and
Seth Ginsberg. Two private investigators assisted me
in preparing and defending the case.
3. Since the Dhinsa case, I have tried at least 12 criminal
cases, including complex RICO and securities fraud
cases. Since 1999, I have represented dozens of other
clients whose cases did not go to trial but nevertheless
often involved complex motions and hriigs.
A-11]
4. With my crowded caseload and the passage of nearly
five years since Mr. Dhinsa’s trial. I do not have
sufficient memory to refute the defendant’s
allegations about the conversations that he claims to
have had with me or to recollect the tactical decisions
that I made during trial.
5. 1 have reviewed the submissions made by both parties
in this post-conviction proceeding. They do not
refresh my recollection. I have no notes, nor is it my
practice to make such notes, that record my
" conversations with my client or my thinking process
on whether to call a particular defense witness.
Dated: New York, New York
October 5, 2003
S/Gerald L.Sharge]
Gerald L. Shargel
Sworn to before me this
7th day of October 2003
Notary Public
MARC A. FERNICH
Notary- Public State of New York
No. 02FE507407S
Qualified in NewYork County
Commision Expires 3/10/04
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEWYORK
(me Cae a Ses GES SO SD OD sO SS SO OS OS OS OS OD DS x
UNITED STATES OF AMERICA,
Plaintiff,
ORDER
-against- 02-CV-6 1 56(ERK)
GURMEET SINGH DHINSA,
Defendant-Petitioner.
xX
Konnan, Ch. J.
In light of the affidavit submitted by Mr. Shargel,
petitioner is directed to address the issue whether the petition
should be dismissed because the United States Attorney has
been prejudiced in her ability to respond to it due to delay in
its filing. Rules Governing Section 2254 Cases, Rule 9(a).
While the petition here is brought pursuant to 28 U.S.C. §
2255, it may be applied here “at the discretion of the district
court.” Rule 1(b).
The response should be filed within 14 days of the
date of this order.
SO ORDERED:
s/Edward R. Korman
Edward R. Korman
United States Chief District Judge
Brooklyn, New York
October 28, 2003 ~
A-113
KOZYRA & HARTZ, LLC
COUNSELLORS AT LAW
140 EAGLE ROCK AVENUE -
ROSELAND, NEW JERSEY 07068
973-403-8344
BARRY A. KOZYRA(1)
JUDITH A. HARTZ Our File No. 10079-1
Telefacsimile: 973-403-9652 Email BarryKozyra
@KozyraHartz.com
RAJ GADHOK(1)
LYNNE M. GACHETTI
(1)MEMBER OF NJ & NY BARS
December 8, 2003
Hon. Edward R. Korman
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re: Gurmeet Singh Dhinsa v. Al Herrera
Civil Docket No. 02-6156 (ERK)
Dear Chief Judge Korman:
MOVANTS COUNSEL IS DIRECTED
TO SERVE A COPY OF THIS ORDER
ON ALL PARTIES UPON RECEIPT
This office represents Gurmeet Singh Dhinsa with
respect to a petition for relief from his conviction and
sentence pursuant to 28 U.S.C. §2255 W. e are writing this
letter-in confirmation of a telephone converation that I had
with one of Your Honor’s law clerks this afternoon.
I explained to your clerk that Your Honor issued an
Order on October 28, 2003 directing that the issue of
A-114
prejudice to the Government (in light of an Affidavit
furnished by pedecessor counsel Gerald Shargel) be filed
within two weeks. Unfortunately, when the Order was
received it was misread as asking the Government to make
the appropriate filing when in fact the Order was directed to
this office. We realized this error earlier today when we were
reviewing -the file-and-the Order.
I would ask the Court for seven (7) days from today’s
date to make that filing. I apologize for any inconvenience to
the Court and to the Government by reason of this oversight.
We have not asked the Court for any other extensions of time
to file papers in this matter. By copy of this letter, I am
notifying Assistant United States Attorney Catherine Friesen
of this request
If Your Honor requires a further submission, please
advise.
Respectfully submitted,
s/Barry A. Kozyra
BARRY A. KOZYRA
BAK:cml
cc: Catherine Friesen, Asst. U.S. Attorney (By Telefacsmile)
A-115
KOZYRA & HARTZ, LLC
COUNSELLORS AT LAW
140 EAGLE ROCK AVENUE -
ROSELAND, NEW JERSEY 07068
973-403-8344
BARRY A. KOZYRA(I)
JUDITH A. HARTZ Our File No. 10079-1
Telefacsimile: 973-403-9652 Email BarryKozyra
@KozyraHartz.com
RAJ GADHOK(1)
LYNNE M. GACHETTI
(1)MEMBER OF NJ & NY BARS
December 11, 2003
VIA FEDERAL EXPRESS
Hon. Edwarc R. Korman
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re: Gurmeet Singh Dhinsa v. Al Herrera
Civil Docket No. 02-6156 (ERK)
Dear Chief Judge Korman:
This office represents the petitioner, Gurmeet Singh
Dhinsa, with respect to apetition for relief from his
conviction and sentence pursuant to 28 U.S.C. §2255. Mr.
Dhinsa’s petition was filed with the Eastern District of New
York on November 29, 2002 after its original filing in the
Central District of California on September 16, 2002. On
January 8, 2003, Your Honor issued an Order to Show Cause
ordering the United States Attorney for the Eastern District
ofNew York to file a response to Mr. Dhinsa’s petition within
sixty days as to why the motion should not be granted. Over
A-116
the next nine months, the Government issued repeated
requests for extensions of time to file its responding papers,
all of which were granted by Your Honor. During that time,
the Government’s proffered reason for the extensions-were
its need to obtin transcripts of a charging conference held
before the Court. It was our understanding from Assistant
United States Attorney Catherine Friesen that the
Government contended that one of the issues addressed by
the petition (that Mr. Dhinsa was not advised of his
constitutional right to testify at his trial) was specifically
addressed during the charging conference before Your
Honor. It was presumablr the Government’s position those
rights were waived by Mr. Dhinsa during a recorded
discussion.
On or about September 22, 2003, this office received
the Government’s Opposition Brief to Mr. Dhinsa’ s petition.
In the Government’s brief, the Government fails to cite to
any portion of the record, including the charging conference,
in which Mr. Dhinsa’s waiver of his constitutional nght to
testify was discussed or even mentioned. The Government
simply assumes that “it is highly unlikely ... that Mr.
Dhinsa’s claims are true,” without citing to the record. United
States’ Memorandum in Opposition to the Defendant’s
Motion Pursuant to 28 U.S.C. §2255, p. 12. However, the
Government never suggests.that it has been prejudiced by
any delay in the filing of Mr. Dhinsa’s petition.
On September 30, 2003, Your Honor issued a
Memorandum and Order to Gerry L. Shargel, Esq., Mr.
Dhinsa’s lead trial counsel, directing Mr. Shargel to file an
affidavit responding to the ineffective assistance of counsel
claim raised in the petition. Mr. Shargel promptly provided
the Court with an affidavit, dated October 7, 2003, in which
he certifies that he does not have sufficient memory to refute
the petitioner’s allegations about the conversations that the
petitioner claims to have had with him (in his $2255 motion
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papers) or to recall the tactical decisions made at trial. See
Affidavit of Gerty L. Shargel, ] 4, 5.
On October 28, 2003, Your Honor issued an Order
directing the petitioner to address the issne of whether the
petition should be dismissed because theUnitd States
Attorney has been prejudiced in her ability to respond due to
a delay in the petition’s filing.
Your Honor has issued the October 28, 2003 Order
sua sponte and without the Government's contention that it
has been prejudiced due to delay in Mr. Dhinsa’s filing of his
petition pursuant to §2255. Accordingly, it is our position
that the Court is constrained to hold that the claim is properly
before it. See Ida v. United States, 191 F.Supp. 426, 436-37
(S.D.N.Y.2002). Nonetheless, we have attempted to address
the issue of prejudice to the Government as per your Order.
‘Rule 9(a) of the Rules Governing Section2255
Proceed-ings for the United -States District Courts provides:
Delayed petitions. A motion for relief made pursuant
to these rules may be dismissed if it appears that the
government has been prejudiced in its ability to
respond to the motion by delay in its filing unless the
movant shoW that it is based on grounds of which he
could not have had knowledge by the exercise of
reasonable diligence before the circumstances
prejudicial to the government occurred. |
28 U.S.C.A. foll. §2255 (2003).
A respondent seeking to dismiss a habeas petition
under Rule 9(a) faces a “heavy burden” in proving a laches |
defense. See Dumas v. Kelly, 105 F.Supp.2d 66, 69-70
(E.D.N.Y.2000)(citing Hughes v. Iryj, 67 F.Supp. 775, 779
(E.D.N.Y.1997)). The respondent must: (1) make a
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particularized showing of prejudice, (2) show that the
prejudice was caused by the petitioner having filed a late
petition, .and (3) that the petitioner has not acted with
reasonable diligence as a matter of law. If the respondent
fails to establish any one of these elements, its Rule 9(a)
motion fails. See Id.
With respect to the first prong of the Rule 9(a)
dismissal analysis, prejudice to the government may not be
merely presumed from the absence of a transcript or of
witnesses necessary to recount the details of a proceeding.See
Cotto v. Lord, 2001 WL 21246 at 6 (S.D.N.Y.2001). Rather,
the Government thust actuallybe disadvantagedbythe absence
of such resources in responding to the particular allegations
or theories asserted by the petitioner as grounds for habeas
corpus. See Id.
The Government has not demonstrated or proffered
any showing of prejudice as required by law. Full transcripts
from the trial proceedings are available for the Government’s
review and for the Court’s review. In fact, the Government
delayed its response to the petition for nearly ten months as
they presumably conducted a review of the trial transcripts
(in which they previously asserted that Mr. Dhinsa had
knowingly waived his constitutional right to testify).
However, the Government has failed to cite any portion
of the transcript which supports such assertion.
Moreover, to merely assume that the Government is
prejudiced byMr. Shargel’s lack of recollection as to whether
he advised Mr. Dhinsa of his constitutional right to testify
and whether Mr. Dhinsa waived such nght is far too
speculative to warran+ dismissal of the petition. Mr. Shargel
has not refused to provide an affldavit so as to create any
adverse inference as to Mr. Dhinsa’s allegations. Mr. Shargel
has not sworn that he did in fact advise Mr. Dhinsa of his
right to testify. He states that he does not recall having any
i A-119
such discussion with Mr. Dhinsa due to his case load. See
Affidavit of Gerry L. Shargel, § 4, 5. Mr. Shargel’s affidavit
provides nothing interms of evidence to support an argument
that the Government has been prejudiced. If anything it
corroborates Mr. Dhinsa’s recollection that the issue was not
addressed.
“Tf the respondent fails to make the required showing
of prejudice, it is irrelevant whether the petitioner was
diligent or not in filing his habeas petition.” Dumas v. Kelly,
105 F. Supp.2d 66, 70 (E.D.N. Y.2000)(citing Smith v.
Duckworth, 910 F.2d 1492, 1496 (7th Cir.1990). However,
assuming that the Government is able to satisfy the prejudice
prong under the Rule 9(a) dismissal analysis, they must still
show that the prejudice was caused by the petitioner having
filed a late petition. Moreover, the Government mut prove
that the prejudice was caused bythe petitioner’s undue delay,
and not the mere passage of time alone. See Quinones v.
Miller, 2003 WL2 1276429 at 23 S.D.N.Y.2003)(quoting
Pacheco v. Artuz, 2001 WL 1134864 at 4 (S.D.N.Y.2001)).
There is no issue as to Mr. Dhinsa’s timely filing of
the petition. His petition papers were appropriately filed
within the statute of limitations set by the Antiterrorim and
Effective Death Penalty Act of 1996 (“AEDPA”)’. Mr.
Dhinsa’s filing was within one year of the date on which the
' Before passing Rule 9(a), Congress deleted a provision
from the draft version that would have created a rebuttable
presumption of prejudice only after a delay of five or more years.
See Lonchar v. Thomas, 517 U.S. 314, 327 (1996). Congress
concluded that such a presumption would be inconsistent ith
habeas reliefs equitable purposes. See id. (quoting H.R.Rep. No.
94-1471 at 5(1976)("It is unsound policy to require the defendant to
overcome a presumption of prejudice.”)).
A-120 .
final judgment became final, as required bythe AEDPA.’
Moreover, Mr. Dhinsa and his counsel clearly acted with
reasonable diligence as a matter of law in investigating the
facts, meeting with Mr. Dhinsa and reviewing the trial
transcript before filing the petition. Mr. Dhinsa’s judgment of
conviction did not become fina] until his petition for writ of
certiorari was denied by the United States Supreme Court in
late-2001 (following an appeal to the United States Court of
Appeals for the Second Circuit). His petition for writ of
habeas corpus was filed on September 16, 2002 in the Central
District of California, where the petition6r is incarcerated.
The petition was dismissed without prejudice for lack of
jurisdiction and immeadiately re-filed in the Eastern District
_ of New York on November 20, 2002. It cannot reasonably be
argued that the petitioner is responsible for any “undue
delay” with respect to his case as he has diligently pursued
his appellate and post-conviction relief Options over the past
four years.’ Therefore, the Government also fails ‘to satisfy
the second and third prongs of the Rule 9(a) dismissal
analysis.
The Government cannot overcome the “heavy
burden” standard set forth by the Eastern District in Hughes,
supra. at 779. It appears as though the Government’s only
argument rests on the passage of time (albeit a short period of
time) since the conclusion of, the criminal trial and the
exercise of Mr. Dbinsa’s appellate rights. “Tardiness is
irrelevant where a constitutional issue is raised and where the
'_n Hughes v. Irvin, 967 F.Supp. 775, 779
(ED.N.Y.1997), the Government’s motion to dismiss was
denied since the Court found. that the petitioner had diligently
pursued his appellate and post-conviction relief options over nearly
seventeen years.
A-121]
prisoner is till confined.” McKinney v. United States, 208
F.2d 844, 846-47 (D.C.Cir.1953).
We ask the Court to draw an adverse inference to the
Government’s failure to demonstrate (as previously alleged)
that Mr. Dhinsa was aware of his right to testift at the above
trial and waived that right knowingly. Mr. Dhinsa remains
incarceraied in the federal prison facility at Lompoc,
California, and the Government should not be afforded an
additional unsubstantiated defense to the instant habeas
pe*ition. We submit that Mr. Dhinsa’s constitutional rights
« 2 been violated and request the scheduling of a full
evidentiary hearing at this time.
Respectfully submitted,
s/Barry A. Kozyra
BARRY A. KOZYRA
BAK: rg
¢ cc: Gatherine Friesen, Assissant United States. Attorney
(via-Federal-Express)
A-122
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
sci saibiiaeaasaaiilensiisiaaidaadaiialadianiaeadamemamacaeal X
UNITED STATES OF AMERICA,
Plaintiff,
MEMORANDUM &
against ORDER
02-C V-6156(ERK)
GURMEET SINGH DHINSA, 97-CR-0672(ERK)
Defendant-Petitioner.
Setisninhoadedecan Menta X
Korman, Ch. J.
Petitioner’s response to my inquiry on his delay in
filing the petition relies in part on the fact that his petition
was filed within the prescribed one-year period of limitations.
The petition was filed three years after he was sentenced. The
applicability of the doctrine of laches applies precisely to a
case in which the action is filed within the statute of
limitations. Otherwise the doctrine would serve no purpose.
Nevertheless, petitioner’s response caused me to examine the
history of the case to determine whether the petition was
timely filed.
The Supreme Court denied the petitioner a wnt of
certiorari on October 1, 2001. Dhinas v. United States, 534
U.S. 897,122 S.Ct. 219(2001). The petition was not filed here
until November21, 2002. This was more than one year after
the petition was denied. While petitioner filed his initial
petition on September 16, 2002, in the Central District of
California, it was dismissed without prejudice for lack of
jurisdiction. The period of time during which the petition was
pending in California did not toll the statute of limitations.
Cf. Duncan v. Walker, 533 U.S. 167,121 S.Ct. 2120 (2001).
A-123
The latter case held that a petition for a writ of habeas corpus
which was dismissed without prejudice did not toll the one-
year period of limitations during the period in which it was
pending. The holding was based on the language of a specific
tolling statute for properly filed applications for state post-
conviction relief. 28 U.S.C. § 2244(d)(2). Unlike the period
of limitations for state petitions, 28 U.S.C. § 2255 { 6 does
not provide for tolling during the pendency of post-
conviction petitions. See Johnson v. United States, 246 F3d
655, 660 (6th Cir. 2001) (Because a collateral challenge is a
separate proceeding that does not interfere with the
finality of the judgement attacked.... [it] has no per se impact
on the AEDPA limitation period”).
Accordingly, petitioner is ordered to show cause
within ten days why the petition should not be dismissed on
the ground that it was not filed timely.
SO ORDERED:
s/Edward R. Korman
Edward R. Korman
United States Chief District Judge
Brooklyn, New York
December 19, 2003
A-124
KOZYRA & HARTZ, LLC
COUNSELLORS AT LAW
140 EAGLE ROCK AVENUE -
ROSELAND, NEW JERSEY 07068
973-403-8344
BARRY A. KOZYRA(1)
JUDITH A. HARTZ Our File No. 10079-1
Telefacsimile: 973-403-9652 Email BarryKozyra
@KozyraHartz.com
RAJ GADHOK(1)
LYNNE M. GACHETTI
(1)MEMBER OF NJ & NY BARS
December 29, 2003
VIA TELEFACSIMILE AND FEDERAL EXPRESS
Hon. Edward R. Korman
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re: Gurmeet Singh Dhinsa v. Al Herrera
Civil Docket No. 02-6156 (ERK)
Dear Chief Judge Korman:
This office represents the petitianer, Gurmeet Singh
Dhinsa, with respect to a petition for relief from his contition
and sentence pursuant to 28 U.S.C. $2255. On Decembr 19,
2003, Your Honor requested that this office show cause as to
why the petition should not be disiaissed on the ground that it
was not timely filed, citing to Duncan v. Walker, 533 U.S.
167 (2001) and Johnson v. United States, 246 F.3d 655 (6th
Cir.2001). There is no direct case on point addressing Your
Honor’s inquiries in the unusual factual circumstance sub
judice, as the two cited case are factually and legally
A-125
distinguishable. However other cases do provide a clear
direction that allows for the goal of justice to be achieved by
allowing Mr. Dhinsa’s petition to be heard. Please accept this
letter memorandum in lieu of a more formal brief inresponse
to Your Honor’s request.
There is no genuine issue as to Mr. Dhinsa’s timely
filing of a petition for the very relief sought before this Court.
Petition papers were filed on September 16,2002, within the
statute of limitations set by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) Mr. Dhinsa’s filing
was within one year of the date onwhichthe final judgment
became final, as required by the ARDPA. Prior to filing, Mr.
Dhinsa and his counsel acted with reasonable diligence as a
matter of law in investigating the available facts, meeting
with Mr. Dliinsa, and reviewing the extensive trial transcript
before filing the petition. Mr. Dhinsa’s judgment of
conviction did not become final until his petition for writ of
certiorari was denied by the United States Supreme Court on
or about October 1, 2001 (following an appeal to the United
States Court of Appeals for the Second Circuit). A petition
for writ of habeas corpus pursuant to 28 U.S.C. §2241 was
filed less than one year later on September 16, 2002 in the
Central District of California, where the petitioner is
incarcerated. Mr. Dhinsa was viewed as within his rights to
file the petition in the Central District of California as he is
considered a realdent of the district while serving a life
sentence in the United States Penitentiary in Lompoc,
California.
Upon review of the papers, the Central District of
California Court sua sponte and without prior notice of
hearing, recast the application as more appropriately a $2255
petition and declined jurisdiction based on the fact that the
“petitioner has failed to make the requisite showing that
Section 2255 is an inadequate or ineffective remedy.” See
Exhibit A. The Court further noted that “there is nothing
_| BEST AVAILABLE COPY
A-126 ‘
which prevents him [Mr. Dhinsa] from bringing a Section
2255 petition in the sentencing court.” However, Mr.
Dhinsa’s petition was incorrectly dismissed without prejudice
(instead of being transferred to the identified sentencing
court, see infra) for lack of jurisdiction in an Order dated
September 23, 2002. But that decision was not filed until
October 2, 2002 and counsel was not given notice until
October 7, 2002, after the one year date in the AEDPA. As
noted, there was no prior communication from the Court to
counsel (or to Mr. Dhinsa) as to disposition of the matter
prior to the dismissal.
While the Order was signed on September 23, 2002, it
was not filed until October 2, 2002 and was not received by
this office until October 7, 2002, the latter two dates of which
were after the one year statute of limitations set forth in the
AEDPA. The habeas petition was thereafter re-filed with the
Eastern District of New York under Section 2255 where it
has remained open for the past thirteen months. At no time
was the filing date questioned as it would relate back to the
date of actual filing (September 16, 2002) as a matter of law.
During those thirteen months, the Government has issued
repeated requests for extensions of time to file its responding
papers, all of which were granted by Your Honor in the
interest ofjustice. However, the Government has never raised
the issue of a limitation bar for Mr. Dhinsa’s filing under the
AEDPA, apparently acting with the same good faith
understanding that the effective filing date was September
16, 2002 and shoitid be so observed in the interest of justice.
The federal statute governing a habeas corpus petition
provides that “writ of habeas corpus maybe granted by the
Supreme Court, any justice thereof, the district courts and
any circuit judge within their respective jurisdictions.’ 28
U.S.C. §2241(a). As evidenced by the Order issued by Judge
Phillips in the Central District of California, the Court
declined consideration of the writ for lack of jurisdiction
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despite the fact that the petitioner is present within the
territorial jurisdiction of the Central District of California
citing to the “burden” of hearing such a habeas corpus
application where there was available the more convenient
jurisdiction of the sentencing court.” Thus Judge Phillips
determined that since Mr. Dhinsa’s conviction and sentence
were imposed by the District Court for the Eastern District of
New York, the petition would be more conveniently
presented in the Eastein District Since the federal court in the
Eastern District can and has in fact exercised jurisdiction
over this petition, federal law mandated transfer to that court,
not dimissal. Judge Phillips certainly could not have meant to
prejudice Mr. Dhinsa by failing to tranfer the case and having
the Order delivered after the one year filing deadline.
(Ironically, Judge Phillips’ Order has a box cheked
“Priotity.”) Th Iaws and rules which are designed to provide
justice cannot be so mechauically applied.
Whenever a civil action is filed in a court .. and that
court finds that there is a want of jurisdiction, the
Court shall. if it is in the interest of justice, transfer
such action.. to any othet such court in which.the
action or appeal could have been brought at the time it
was filed or noticed
28 U.SC.A. §1631 (2003).
In Miller v. Hambrick, 905 F.2d 259 (9th Cir.1990, the Court
of Appeals for the Ninth Circuit stated:
[T]ransfer will be in the interest of justice because
normally dismissal of an action that could be brought
elsewhere is “time- consuming and just
This text is long and has been trimmed here. Open the source document for the complete record.
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