United States v. Masud Al Safarini

• Court: District Court, District of Columbia
• Decided: November 1, 2021
• Docket: Criminal No. 1991-0504
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

ZAYD HASSAN ABD AL-LATIF Crim. Action No. 91-504-3 MASUD AL SAFARINI, (EGS)

Defendant.

MEMORANDUM OPINION

I. Introduction Defendant Zayd Hassan Abd Al-Latif Safarini (“Mr. Safarini”

or “Defendant”) pled guilty to 95 counts related to the

attempted hijacking of Pan Am Flight 73 in Pakistan on September

5, 1986. See Plea Agreement, ECF No. 118 at 1. 1 He was sentenced

to three consecutive life sentences, plus 25 years. See

Judgment, ECF No. 125 at 4. Mr. Safarini seeks to set aside or

correct his sentence, pursuant to 28 U.S.C. § 2255. See

generally Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or

Correct Sentence by a Person in Federal Custody (Ҥ 2255

Motion”), ECF No. 141.

1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document.

1 Through an extensive set of post-conviction filings, Mr.

Safarini makes several arguments in favor of setting aside his

guilty plea. First, he asks the Court to vacate his conviction

for Use of a Firearm During a Crime of Violence, charged

pursuant to 18 U.S.C. § 924(c) (Count 95), arguing that the

crime of Attempt to Commit Air Piracy Resulting in Death,

charged pursuant to 49 U.S.C. App. § 1472(i), is not a “crime of

violence” based upon the Supreme Court’s decisions in Johnson v.

United States, 135 S. Ct. 2551, 2560 (2015), and United States

v. Davis, 139 S. Ct. 2319, 2321 (2019)(hereinafter, referred to

as the Johnson motion). See § 2255 Motion, ECF No. 141 at 2.

Second, he asks the Court to vacate his conviction for Attempt

to Commit Air Piracy Resulting in Death, charged pursuant to

18 U.S.C. App. § 1472(i) (Count 8), arguing that the Court

lacked jurisdiction over the attempted air piracy charge because

the aircraft was not in flight at the time that he committed the

crimes. See Motion to Dismiss Counts of the Indictment (“Def.’s

Suppl.”), ECF No. 145 at 8-9. Third, Mr. Safarini claims that

the Court lacked jurisdiction to sentence him on the counts

involving Murder of a United States National Outside the United

States, charged pursuant to 18 U.S.C. § 2331(a)(1) (Counts 3 and

4), because that statute purportedly was not in effect at the

time he committed the crime. See id. at 10. Fourth, he claims

that his plea agreement is void for several reasons, including

2 the violation of his due process rights and Rule 11, as well as

ineffective assistance of counsel. See Suppl. to Mot. to Dismiss

(“Def.’s Fourth Suppl.”), ECF No. 170 at 11-14.

In support of his ability to bring the § 2255 challenges,

Mr. Safarini makes a set of procedural arguments. First, he

argues that his waiver of the right to raise a collateral attack

in his plea agreement is unenforceable because there was no

jurisdiction for the charge of Attempt to Commit Air Piracy. See

id. at 14-15. Second, he argues that his procedural default–

failure to challenge his guilty plea on appeal on grounds of

knowingness and voluntariness should be excused because his

“severe depression” establishes “cause.” Id. at 15-17. Third, he

requests that the Court apply the doctrine of equitable tolling

and excuse the late filing of his § 2255 motion. See id. at 4-5.

Fourth, he suggests that if the Court determines that relief is

not available to him pursuant to § 2255 due to “procedural

reasons,” such as untimeliness or procedural default, he should

be permitted to seek the same relief pursuant to a petition for

a writ of coram nobis. Id. at 17-18.

Pending before the Court are: (1) Def.’s § 2255 Motion, see

ECF No. 141; (2) Def.’s Suppl., ECF No. 145; (3) pro se Motion

to Clarify and Narrow the Issue Before this Court and Move for

Expedited Decision/Emergency Petition Immediate Liberty Interest

(“Def.’s Second Suppl.”), see ECF No. 168; (4) pro se Letter for

3 Leave to Amend a Supplemental Reply to the Omnibus Sur-Reply of

the United States Without Amending the Pleadings But in Support

of the Original Filings Now Showing that With Support of the

Supreme Court Decisions the District Court Lacked Subject Matter

Jurisdiction and Personal Jurisdiction of the Petitioner and as

a Result the Plea Agreement Should be Vacated and Judgment Set

Aside and Manifest of Injustice be Corrected (“Def.’s Third

Suppl.”), which the Court construes as a motion, see ECF No.

169; and (5) Def.’s Fourth Suppl., ECF No. 170. Upon

consideration of the motions, responses, and the replies

thereto, the applicable law and regulations, the entire record

and the materials cited therein, the Court DENIES all five

motions.

II. Factual and Procedural Background

A. Factual Background On September 5, 1986, Mr. Safarini, along with a group of

co-conspirators, attempted to hijack Pan American Flight 73, en

route from Karachi, Pakistan, to Frankfurt, Germany with

approximately 379 passengers and 78 U.S. Citizens on board.

United States v. Safarini, 257 F. Supp. 2d 191, 193 (D.D.C.

2003). Four men, including Mr. Safarini, seized control of the

aircraft while it was on the tarmac boarding passengers. Id. The

pilot, co-pilot and engineer escaped while the hijackers were

taking control of the aircraft, thereby grounding the plane. Id.

4 After having seized control, Mr. Safarini instructed flight

attendants to procure the passports of those aboard the plane,

specifically to identify American citizens. Id. He then demanded

that a cockpit crew be provided to fly the plane to Cyprus and

threatened to kill passengers one by one to coerce authorities.

Id. To emphasize the seriousness of his request, he then held a

passenger, Rajesh N. Kumar, a United States national, at

gunpoint, shot him in the head, and threw his body from the

aircraft onto the tarmac. Id. Following Mr. Kumar’s murder,

radio communications were established between the plane and the

control tower, and Mr. Safarini began negotiations on behalf of

the hijackers with Pakistani authorities. Id.

Later that day, when the auxiliary power unit supplying

power to the plane failed, the hijackers herded the passengers

and crew members into the center of the aircraft. Id. Mr.

Safarini, alongside his co-conspirators, then opened fire on the

aircraft’s passengers with assault rifles and pistols, and

detonated hand grenades into the crowd. Id. Nineteen passengers

were killed during the assault, including a second American

citizen, Surendra Patel. Id. More than one hundred other

passengers were seriously injured. Id.

5 B. Procedural Background

1. Original Conviction

Mr. Safarini was tried jointly with his four co-defendants

in Pakistan in 1987 for charges arising from the events

described above. Safarini, 257 F. Supp. 2d at 194. Each

defendant was convicted and sentenced to death, though each

sentence was subsequently commuted to a life sentence. Id. Mr.

Safarini, however, was released on September 27, 2001, after

being imprisoned for approximately 15 years; and the Federal

Bureau of Investigation (“FBI”) subsequently captured him as he

was traveling to Jordan. 2

On August 29, 1991, a 126-count indictment against Mr.

Safarini had been returned under seal by a grand jury in the

United States District Court for the District of Columbia. See

generally Indictment, ECF No. 1. On August 28, 2002, following

Mr. Safarini’s capture by the FBI, a grand jury returned a

superseding indictment charging Mr. Safarini and his four co-

defendants with ninety-five federal offenses. See generally,

Superseding Indictment, ECF No. 26. On December 16, 2003, Mr.

Safarini pled guilty to all ninety-five charges pursuant to a

plea agreement. See Plea Agreement, ECF No. 118 ¶ 1. He was

2 In 2008, the Pakistani authorities released the remaining four defendants from custody and they are currently on the FBI’s Most Wanted Terrorists List. See Gov’t’s Omnibus Opp’n, ECF No. 151 at 2.

6 represented by Robert Tucker, Esquire, of the Office of the

Federal Public Defender for the District of Columbia, and

private counsel, David Bruck, Esquire. See id. at 1. The counts

of conviction included charges of murder, attempted murder,

attempted air piracy, hostage-taking, and conspiracy to commit

offenses against the United States. See id. ¶ 4.

Under the terms of the agreement, the government agreed

that it would not seek the death penalty, and the parties agreed

that the appropriate sentence was three consecutive life

sentences, plus 25 years. See Plea Agreement, ECF No. 118 ¶¶ 4,

12. In addition, pertinent to several of the claims Mr. Safarini

now raises, the plea agreement included the following provision:

Your client also voluntarily and knowingly waives your client’s right to challenge the sentence or manner in which it was determined, or the plea itself, in any collateral attack, including but not limited to a motion brought under Title 28, United States Code, Section 2255. Your client understands that, under legal ethical rules, you are not permitted to advise your client to waive any claims of ineffective assistance of counsel against you and, therefore, this waiver does not include any such claims of ineffective assistance of counsel against you.

Plea Agreement, ECF No. 118 ¶ 20. This Court accepted the

parties’ Rule 11(c)(1)(C) plea agreement and sentenced Mr.

Safarini to the agreed-upon sentence. See Minute Entry, May 13,

2004. The Court entered the judgment on May 24, 2004. See

7 Judgment, ECF No. 125. Mr. Safarini did not note an appeal. See

generally Docket for Criminal Action No. 91-504-3.

2. Post-Conviction Proceedings Approximately twelve years later, Mr. Safarini began to

collaterally attack his convictions. First, on or about June 18,

2016, he mailed to the U.S. Court of Appeals for the Federal

Circuit (“Federal Circuit”) two pro se motions: (1) a § 2255

motion; and (2) a Motion Under 28 U.S.C. § 2244 for Order

Authorizing the District Court to Consider Second or Successive

Application for Relief Under 28 U.S.C. § 2255 (“§ 2244 motion”),

see Petition, United States Court of Appeals for the District of

Columbia (“D.C. Circuit”) Docket #16-3094. In his § 2255 motion,

Mr. Safarini asserted that his conviction relating to the

§ 924(c) firearms offense (Count 95) must be vacated in light of

the Supreme Court’s decision in Johnson v. United States, 135 S.

Ct. 2551 (2015). See generally § 2255 Motion, ECF No. 141. On

August 5, 2016, the Federal Circuit transferred these motions to

the D.C. Circuit. See D.C. Circuit, Docket #16-3094.

On September 19, 2016, the government requested that the

D.C. Circuit transfer the two motions to this Court because the

§ 2255 motion was not “second or successive.” See Gov’t’s

Omnibus Opp’n, ECF No. 151 at 5. On October 17, 2016, Mr.

Safarini’s § 2255 and § 2244 motions were transferred to this

Court. See Notice, ECF No. 138. On February 14, 2017, Mr.

8 Safarini filed with this Court a copy of his § 2255 motion that

had been previously sent to the Federal Circuit. See § 2255

Motion, ECF No. 141.

While Mr. Safarini’s § 2255 and § 2244 motions were being

filed elsewhere and transferred to this Court, on August 29,

2016, he filed in this Court a pro se Motion to Dismiss

Conviction and Indictment Because District Court Lacked

Jurisdiction to Try this Case, see ECF No. 136. The Court

directed the government to file a response. See Minute Order,

January 29, 2017. On February 17, 2017, Mr. Safarini filed a

motion to withdraw his motion to dismiss, asserting that it did

not “represent the arguments and case law [he] wish[ed] to

argue” and indicating that he planned to file another motion at

a later date “to address the true essence of jurisdiction that

[he] wish[ed] to argue.” Mot. to Dismiss, ECF No. 142. On

February 27, 2017, the government filed its Opposition to Mr.

Safarini’s pro se motion, even though Mr. Safarini had moved to

withdraw that motion. See Resp. to Mot., ECF No. 144.

On February 28, 2017, Mr. Safarini filed a revised pro se

Motion to Dismiss Counts of the Indictment Under Titles 18

U.S.C. §§ 2331 and 844(i), Titles 49 U.S.C. App. § 1472 and 49

U.S.C. § 46502 and Void Plea Agreement for Lack of Jurisdiction

(“Def.’s Suppl.”), see ECF No. 145. The Court subsequently

granted Mr. Safarini’s motion to withdraw his initial pro se

9 Motion to Dismiss. See Minute Order, April 12, 2017. The Court

further ordered the government to respond to Mr. Safarini’s

§ 2255 motion and to his revised February 28, 2017, motion to

dismiss. See id.

On September 12, 2017, the government filed its Omnibus

Opposition to Mr. Safarini’s pro se motions. See Gov’t’s Omnibus

Opp’n, ECF No. 151. The Court subsequently appointed counsel,

Jerry Ray Smith, Esquire, to represent him. See Minute Order,

September 21, 2017. On May 21, 2018, Mr. Safarini, through

counsel, filed a Reply to the government’s Omnibus Opposition.

See Reply, ECF No. 159. On September 12, 2018, the government

filed its Surreply. See ECF No. 162.

On September 21, 2018, Mr. Safarini’s counsel filed a

Motion to Stay Post-Conviction Proceedings, pending the receipt

of certain medical records, see ECF No. 163; which the Court

granted, see Minute Order, October 3, 2018. On February 11,

2020, Mr. Safarini’s counsel filed a Motion to Lift Stay and Set

Deadlines for Filing Supplement to Post-Conviction Pleading, see

ECF No. 164. On April 13, 2020, Mr. Safarini’s counsel filed a

Motion for Leave to Expand the Record Under Seal, with

attachments, and an accompanying Motion for Leave to File Motion

Under Seal, see ECF No. 166.

On April 21, 2020, Mr. Safarini filed pro se: (1) Def.’s

Second Suppl., see ECF No. 168; and (2) Def.’s Third Suppl., see

10 ECF No. 169. On May 12, 2020, Mr. Safarini’s counsel filed a

supplement to Mr. Safarini’s Motion to Dismiss, see Def.’s

Fourth Suppl., ECF No. 170. 3 The government opposed all three

filings in an omnibus response. See United States’ Opp’n to

Def.’s Suppl. and Other Filings (“Gov’t’s Second Opp’n”), ECF

No. 172. Mr. Safarini’s counsel filed a reply on September 2,

2020. See Reply (“Second Reply”), ECF No. 173. The motions are

ripe and ready for adjudication. 4

3 As the government points out, the jurisdictional claims raised in the defendant’s motion to dismiss, which are challenges to the validity of his underlying convictions, are properly raised pursuant to § 2255. Therefore, the defendant’s motion to dismiss is construed by the Court as an amendment to his previously filed § 2255 motion because of the nature of the claims the defendant raises and the relief he seeks. See, e.g., Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002) (“[I]n general, when a § 2255 motion is filed before adjudication of an initial § 2255 motion is complete, the district court should construe the second § 2255 motion as a motion to amend the pending § 2255 motion); Williams v. Gonzalez, 567 F. Supp. 2d 148, 149 (D.D.C. 2008) (court “not bound by a pro se litigant’s characterization of his course of action. Rather a court must determine the proper characterization of a filing by the nature of the relief sought.”); United States v. Palmer, 296 F.3d 1135, 1145 (D.C. Cir. 2002) (pro se pleadings should be construed based upon the nature of the relief sought, not the caption the defendant has attached to his pleading).

4 Although transferred to this Court, the Court does not address Mr. Safarini’s § 2244 motion since his § 2255 motion is not “second or successive.” See Notice, ECF No. 138.

11 III. Standards of Review

A. § 2255 Motion Under 28 U.S.C. § 2255, a defendant may move the sentencing

court to vacate, set aside, or correct a sentence if the

defendant believes 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 sentence, or that

the sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack.” 28 U.S.C. § 2255.

The relief envisaged by § 2255 “does not encompass all claimed

errors in conviction and sentencing.” United States v.

Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 60 L. Ed. 2d 805

(1979). “Because of the premium placed on the finality of

judgments, there are limited circumstances under which a court

should grant a [§] 2255 motion.” Bedewi v. United States, 583 F.

Supp. 2d 72, 76 (D.D.C. 2008) (internal quotation marks

omitted).

A defendant bears the burden of demonstrating that he is

entitled to relief under § 2255. See, e.g., United States v.

Bell, 65 F. Supp. 3d 229, 231 (D.D.C. 2014). To obtain

collateral relief under § 2255, it is “well-settled” that “a

prisoner must clear a significantly higher hurdle than would

exist on direct appeal.” United States v. Frady, 456 U.S. 152,

166, 102 S. Ct. 1584 (1982); see also United States v. Pollard,

12 959 F.2d 1011, 1020 (D.C. Cir. 1992) (“[I]n a § 2255 collateral

challenge, [a defendant], in order to gain relief under any

claim, is obliged to show a good deal more than would be

sufficient on a direct appeal from his sentence.”). “Society’s

interest in bringing criminal appeals to an end is the reason

for the high standard for relief in a collateral proceeding.”

Pollard, 959 F.2d at 1029.

For claims other than ineffective assistance of counsel, a

defendant’s failure to raise an available claim on direct appeal

amounts to procedural default, and bars him from raising the

claim in a subsequent collateral attack, unless he shows cause

for his prior failure to raise the claim and prejudice because

of it. See Bousley v. United States, 523 U.S. 614, 622, 118 S.

Ct. 1604 (1998); United States v. Pettigrew, 346 F.3d 1139, 1144

(D.C. Cir. 2003); Brodie v. United States, 626 F. Supp. 2d 120,

123 (D.D.C. 2009). To show cause, a defendant must establish

“some objective factor external to the defense [that] impeded

counsel’s efforts to raise the claim,” such as government

interference or that the factual or legal basis for the claim

was not reasonably available. McCleskey v. Zant, 499 U.S. 467,

493-94, 111 S. Ct. 1454 (1991) (internal quotation marks

omitted). In addition, the defendant must show “‘actual

prejudice’ resulting from the errors of which he complains.”

Frady, 456 U.S. at 168.

13 B. Ineffective Assistance of Counsel Claims of ineffective assistance of counsel are governed by

the standard set forth in Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052 (1984)). To succeed on an ineffective-

assistance claim, a defendant must show both deficient

performance by his attorney and prejudice. Strickland, 466 U.S.

at 687. Strickland requires a party claiming ineffective

assistance of trial counsel to show that: (1) “counsel’s

representation fell below an objective standard of

reasonableness ... [measured] under prevailing professional

norms,” (the performance prong); and (2) the “deficiencies in

counsel’s performance...[were] prejudicial to the defense” (the

prejudice prong). Id. at 668, 687-88, 692. To establish

deficient performance, the moving party must show “specific

errors by trial counsel.” United States v. Cronic, 466 U.S. 648,

666, 104 S. Ct. 2039 (1984). To establish prejudice, the moving

party must demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. “Judicial scrutiny of

counsel’s performance must be highly deferential,” and defendant

must overcome “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”

Id. at 689.

14 C. Timeliness of Ineffective Assistance of Counsel Claims The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) statute of limitations applies to the filing of § 2255

claims. Holland v. Fla., 560 U.S. 631, 130 S. Ct. 2549, 2552

(2010). Absent a narrow set of circumstances, a defendant must

file a § 2255 motion within one year of the date on which his

conviction becomes final. 5 See Dodd v. United States, 454 U.S.

353, 357 (2005) (recognizing that “[i]n most cases, the

operative date from which the limitation period is measured will

be . . . the date on which the judgment of conviction becomes

final.”). That date is measured by “the conclusion of direct

review or the expiration of the time for seeking such review.”

United States v. Shelton, 539 F. Supp. 2d 259, 266-67 (D.D.C.

2008).

5 The one-year limitation period runs from the latest of: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

15 Claims filed beyond the one-year limitation are timely if

they relate back to the timely claims, meaning that they “arise

from the same core facts as the timely filed claims, and not

[if] the new claims depend upon events separate in ‘both time

and type’ from the originally raised episodes.” Mayle v. Felix,

545 U.S. 644, 645, 125 S. Ct. 2562 (2005) (internal quotation

marks omitted). The Federal Rules of Civil Procedure establish

that “[a]n amendment of a pleading relates back to the date of

the original pleading when . . . the claim . . . asserted in the

amended pleading arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the

original pleading . . ..” Fed. R. Civ. P. 15(c)(2).

However, in certain cases, the AEDPA statute of limitations

is subject to equitable tolling. Holland, 560 U.S. at 649. To

warrant equitable tolling, a petitioner must show “(1) that he

has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way” and prevented

timely filing. Id.

IV. Analysis Through his various post-conviction filings, Mr. Safarini

presents the following arguments to vacate his convictions.

First, he claims that the crime of Attempt to Commit Air Piracy

Resulting in Death, charged pursuant to 49 U.S.C. App. §

1472(i), is not a “crime of violence” based upon the Supreme

16 Court’s decisions in Johnson, 135 S. Ct. at 2560, and Davis, 139

S. Ct. at 2321. See § 2255 Motion, ECF No. 141 at 2. Second, he

argues that the Court lacked jurisdiction over the attempted air

piracy charge because the aircraft was not in flight at the time

he committed the crimes. See Def.’s Suppl., ECF No. 145 at 8-9.

Third, Mr. Safarini argues that the Court lacked jurisdiction to

sentence him on the counts involving Murder of a United States

National Outside the United States, charged pursuant to 18

U.S.C. § 2331(a)(1) (Counts 3 and 4), because that statute

purportedly was not in effect when he committed the crime. See

id. at 10. Fourth, he brings a set of claims derivative of his

air piracy jurisdiction argument, asserting that his plea

agreement violated his due process rights and Rule 11 since “he

was unaware that there could be no jurisdiction for the

attempted-aircraft-piracy-resulting-in-death charge he was

admitting and that he was therefore actually innocent of that

charge,” and that he consequently received ineffective

assistance of counsel. See Def.’s Fourth Suppl., ECF No. 170 at

11-14. Finally, he asserts that his counsel was also ineffective

because “it was objectively unreasonable of his counsel not to

raise the issue of his competency prior to allowing him to enter

into the plea agreement.” Def.’s Reply, ECF No. 159 at 7.

On the merits, the government responds that: (1) the

decisions in Davis and Johnson do not invalidate Mr. Safarini’s

17 § 924(c) conviction, see Gov’t’s Second Opp’n, ECF No. 172 at 9-

12; (2) the Court did not lack jurisdiction over the attempted

air piracy conviction because the aircraft was not required to

be in flight, see id. at 7-8; (3) Mr. Safarini’s “contention

that the murder and attempted murder charges were based upon a

statute that was not in effect on September 5, 1986, is simply

wrong,” see Gov’t’s Omnibus Opp’n, ECF No. 151 at 27; (4) his

Rule 11 and due process claims “are attempts by the defendant to

repackage his previous claim that the Court lacked subject

matter jurisdiction over Count 8, the charge of Attempt to

Commit Air Piracy,” Gov’t’s Second Opp’n, ECF No. 172 at 15; and

(5) his ineffective assistance of counsel claim fails because

Mr. Safarini’s attorneys “did not have ‘reasonable cause’ to

question his competency, nor were they constitutionally

ineffective for failing to raise such an issue,” Gov’t’s

Surreply, ECF No. 162 at 13.

The government also presents procedural challenges to Mr.

Safarini’s claims, arguing that he is precluded from

collaterally attacking his conviction and sentence on any

grounds except for ineffective assistance of counsel. See

Gov’t’s Omnibus Opp’n, ECF No. 151 at 7. The government also

argues that Mr. Safarini’s plea was knowing and voluntary. Id.

Finally, the government argues that Mr. Safarini’s § 2255 motion

is untimely and that no “extraordinary circumstances” exist to

18 justify equitable tolling. See Gov’t’s Surreply, ECF No. 162 at

23.

In support of his ability to bring his § 2255 challenges,

Mr. Safarini counters that his waiver of the right to raise a

collateral attack in his plea agreement is unenforceable because

there was no jurisdiction for the charge of Attempt to Commit

Air Piracy. See Def.’s Fourth Suppl. at 14-15. Second, he argues

that his procedural default–his failure to challenge his guilty

plea on appeal on grounds of knowingness and voluntariness–

should be excused because his “severe depression” establishes

“cause.” Id. at 15-17. Third, he requests that the Court apply

the doctrine of equitable tolling and excuse the late filing of

his § 2255 motion, also on the basis of his state of mind. See

Def.’s Fourth Suppl. at 4-5.

Mr. Safarini further suggests that if the Court determines

that relief is not available to him pursuant to § 2255 due to

procedural reasons such as untimeliness or procedural default,

he should be permitted to seek the same relief pursuant to a

petition for a writ of coram nobis. Id. at 17-18. The government

counters that the writ of coram nobis is not available to Mr.

Safarini because he is in custody. See Gov’t’s Second Opp’n, ECF

No. 172 at 20.

Before addressing the substantive merits of a defendant’s

claims, the Court must determine whether those claims are

19 timely. United States v. Cicero, 214 F.3d 199, 202 (D.C. Cir.

2000). Here, the Court must first consider whether Mr. Safarini

has the right to bring these claims at all, since he waived the

right to collateral attacks in his plea agreement, except for

any ineffective assistance of counsel claims. See Plea

Agreement, ECF No. 118 ¶ 20. Thus, the Court first considers

whether Mr. Safarini can bring his § 2255 claims in light of his

plea agreement, and then considers the issue of timeliness,

before reaching the merits of the argument.

A. Mr. Safarini’s Claims, Other Than Ineffective Assistance of Counsel, Are Barred by His Plea Agreement In his Motion to Dismiss, Mr. Safarini seeks to void his

plea agreement on the grounds that it “was not knowingly and

intelligently made” since he was unaware that the Court lacked

jurisdiction. See Def.’s Suppl., ECF No. 145 at 11. His reply

adds a second ground, that he “did not understand or appreciate

what he was doing when he pled guilty as a general matter”

because he was depressed, “not in his right mind,” and received

ineffective assistance of counsel. See Def.’s Reply, ECF No. 59

at 5-7.

The government responds that Mr. Safarini’s claim, “while

labeled a challenge to the Court’s jurisdiction, is–at best--a

challenge to the government’s proof with respect to the elements

of that crime.” Gov’t’s Omnibus Opp’n, ECF No. 151 at 21. The

20 government also asserts that the express terms of Mr. Safarini’s

plea agreement with the government, into which he entered

knowingly and voluntarily, preclude him from challenging his

convictions on collateral attack on any grounds except

ineffective assistance of counsel. See id. at 17-21. The Court

addresses each argument in turn.

1. Mr. Safarini’s Attempted Air Piracy Argument Does Not Raise Any Jurisdictional Issues

Mr. Safarini raises jurisdictional issues over his air

piracy charge in myriad ways, ranging from a direct argument

that his plea agreement is void because his plea was not knowing

and voluntary since the Court lacked subject matter, see Def.’s

Suppl., ECF No. 145 at 11-12; to derivative allegations that:

(1) lack of jurisdiction meant that his waiver of a right to

mount collateral attacks is unenforceable, see Def.’s Fourth

Suppl., ECF No. 170 at 14-15; (2) Rule 11 and due process were

consequently violated through accepting his plea, see id. at 11-

12; and (3) that his counsel was ineffective for not challenging

the lack of jurisdiction, see id. at 13-14. Although presented

in different ways, these arguments are all derivative of whether

the Court had jurisdiction. Consequently, the Court first

addresses whether Mr. Safarini has brought a jurisdictional

challenge that could render his plea not knowing or voluntary

and surpass the explicit waiver in his plea agreement.

21 “It is well settled that a voluntary and intelligent

plea of guilty made by an accused person, who has been advised

by competent counsel, may not be collaterally

attacked.” Bousley, 523 U.S. at 621 (internal citation

omitted). A “voluntary plea of guilty waives all rights and

defenses, known or unknown, present or future,” except those

relating to the Court’s jurisdiction. United States v.

Fitzgerald, 466 F.2d 377, 379 (D.C. Cir. 1972); see also Brady

v. United States, 397 U.S. 742, 756-57 (1970); McMann v.

Richardson, 397 U.S. 759, 768-74 (1970); Parker v. North

Carolina, 397 U.S. 790, 794-98 (1970); United States v. Delgado-

Garcia, 374 F.3d 1337, 1341 (D.C. Cir. 2004); United States v.

Drew, 200 F.3d 871, 876 (D.C. Cir. 2000); Coleman v. Burnett,

477 F.2d 1187, 1195 (D.C. Cir. 1973). Where the unambiguous

terms of the plea agreement prevent collateral attacks, the

defendant cannot challenge his plea or sentence on collateral

review via a § 2255 motion. See, e.g., United States v. Bertram,

209 F. Supp.3d 243 (D.D.C. 2016) (in pleading guilty, defendant

waived right to file § 2255 motion except on the basis of newly

discovered evidence or ineffective assistance of counsel; court

held that defendant’s claims of selective prosecution and actual

innocence were barred by express terms of plea agreement); cf.

United States v. Guillen, 561 F.3d 527, 530 (D.C. Cir. 2009)

22 (waivers of right to appeal in plea agreements are generally

enforceable).

There are two recognized exceptions to the rule that by

pleading guilty, the defendant waives his right to challenge his

convictions. United States v. Miranda, 780 F.3d 1185, 1188 (D.C.

Cir. 2015). First, a challenge to the district court's subject-

matter jurisdiction—to the court's power to hear a given case—

can never be waived or forfeited. Arbaugh v. Y & H Corp., 546

U.S. 500, 514 (2006); United States v. Cotton, 535 U.S. 625, 630

(2002). Second, certain constitutional challenges asserting a

“right not to be haled into court at all” cannot be waived

through a guilty plea. Blackledge v. Perry, 417 U.S. 21, 31

(1974); Menna v. New York, 423 U.S. 61, 62-63 n.2 (1975) (“[A]

plea of guilty to a charge does not waive a claim that judged on

its face-the charge is one which the State may not

constitutionally prosecute.”).

Here, Mr. Safarini makes two relevant arguments. First, he

argues that the Court lacked jurisdiction to sentence him on the

counts involving Murder of a United States National Outside the

United States, charged pursuant to 18 U.S.C. § 2331(a)(1)

(Counts 3 and 4), because that statute purportedly was not in

effect when he committed the crime. See Def.’s Suppl., ECF No.

145 at 10. Since the government addresses Mr. Safarini’s

argument about the murder charges only on the merits, the Court

23 considers the government to have conceded that the argument

passes the jurisdictional challenge test.

Second, Mr. Safarini contends that the Court lacked

jurisdiction over the attempted air piracy charge because the

aircraft was not in flight when he committed the hijacking. See

Def.’s Suppl., ECF No. 145 at 8-10. The government responds that

Mr. Safarini’s argument, “while labeled a challenge to the

Court’s jurisdiction, is–at best--a challenge to the

government’s proof with respect to the elements of that crime.”

Gov’t’s Omnibus Opp’n, ECF No. 151 at 20. The Court agrees.

Persuasive authority holds that to sustain a challenge to

the district court’s jurisdiction, a defendant who has pleaded

guilty must establish that the face of the indictment discloses

that the count to which he pleaded guilty failed to charge a

federal offense. Hayle v. United States, 815 F.2d 879, 881 (2d

Cir. 1987); United States v. Santelises, 476 F.2d 787, 788 (2d

Cir. 1973) (coram nobis attack on guilty plea based on alleged

failure of indictment to allege violations of federal law must

be rejected “‘unless [the indictment] is so defective that it

does not, by any reasonable construction, charge an offense for

which the defendant is convicted’”) (quoting United States v.

Trollinger, 415 F.2d 527, 528 (5th Cir. 1969))). The

“requirement that the alleged jurisdictional defect be apparent

from the face of the indictment reflects the line between issues

24 that go to the court’s power to entertain the prosecution and

those that go merely to the government’s ability to prove its

case.” Hayle, 815 F.2d at 882. If the indictment “alleges all of

the statutory elements of a federal offense and the defendant’s

contention is that in fact certain of those elements are

lacking, the challenge goes to the merits of the prosecution,

not to the jurisdiction of the court to entertain the case or to

punish the defendant if all of the alleged elements are proven.”

Id.

Mr. Safarini’s argument regarding the jurisdictional nature

of the air piracy claim follows a somewhat convoluted path: he

claims that although he was charged with, and pled guilty to,

attempted aircraft piracy, his “conduct actually constituted a

completed aircraft piracy” since “Mr. Safarini and his

confederates actually seized control of the aircraft.” Def.’s

Fourth Suppl., ECF No. 170 at 7-8. In 1986, for a charge of

completed aircraft piracy to be within the United States’

special aircraft jurisdiction, the aircraft actually had to be

“in flight” at the time that the conduct occurred. 49 U.S.C.

App. § 1301(38) (1982). In contrast, for attempted aircraft

piracy to be within the United States’ special jurisdiction, it

expressly did not have to be in flight; instead, it had merely

to “have been within the special aircraft jurisdiction of the

United States had the offense of aircraft piracy been

25 completed.” 49 U.S.C. App § 1472 (i)(3) (1982). Mr. Safarini

argues that since Pan Am Flight 73 was not “in flight,” and

since he had completed the offense of aircraft piracy, it cannot

be said that the attempted aircraft piracy that he pled guilty

to “would have been within the special aircraft jurisdiction of

the United States had the offense of aircraft piracy been

completed.” Def.’s Fourth Suppl., ECF No. 170 at 6-7 (citing 49

U.S.C. App § 1472 (i)(3) (1982)).

The Court concludes that this argument “goes to the merits

of the prosecution,” rather than the Court’s ability to hear the

issue. Hayle, 815 F.2d at 882. Although Mr. Safarini’s filings

are couched in jurisdictional terms, his underlying contention

turns on the element of “seizure or exercise of control.” See 49

U.S.C. App. § 1472(i)(2) (1982) (defining “aircraft piracy” as

“any seizure or exercise of control, by force or violence or

threat of force or violence, or by any other form of

intimidation, and with wrongful intent, of an aircraft within

the special aircraft jurisdiction of the United States”). His

assertions regarding the Court’s jurisdiction notwithstanding,

Mr. Safarini’s argument is whether “[he] and his confederates

actually seized control of the aircraft.” See Def.’s Fourth

Suppl., ECF No. 170 at 7. Mr. Safarini himself asserts that

having seized control and completed the offense, ““[i]n Flight”

as an element was required required [sic] in order to be charged

26 and convicted.” Def.’s Suppl., ECF No. 145 at 11-12 (emphasis

added).

Moreover, Mr. Safarini’s argument amounts to an assertion

that he can be charged with neither aircraft piracy, since the

plane was not in flight, nor with attempted aircraft piracy

because, having completed the offense by seizing control on the

ground, “the aircraft would [not] have been within the special

aircraft jurisdiction of the United States had the offense of

aircraft piracy been completed.” 49 U.S.C. App § 1472 (i)(3)

(1982) (emphasis added). Mr. Safarini seeks to have it both

ways-he argues that his conduct “clearly fits the definition of

the type of conduct that constitutes the completed offense of

aircraft piracy,” and simultaneously asserts that had he

completed the offense, it would have fallen outside the special

aircraft jurisdiction of the United States. See Def.’s Fourth

Suppl., ECF No. 170 at 7-8.

Since Mr. Safarini’s argument is whether his actions

satisfy the elements of the offense, specifically as related to

seizure, he has not brought a jurisdictional challenge.

Accordingly, his challenge does not render his plea not knowing

or voluntary thereby rendering the waiver in his plea agreement

unenforceable. See Fitzgerald, 466 F.2d 377 at 379.

27 2. Mr. Safarini’s Argument That His Plea Agreement Was Not Knowing And Voluntary is Barred by Procedural Default Mr. Safarini also contends that his plea was not knowing

and voluntary because he “did not understand or appreciate what

he was doing when he pled guilty,” since he “was not in his

right mind” and was “so depressed that he was willing to agree

to anything without an understanding of what he was agreeing to

and without any regard for what might be best for him.” Def.’s

Second Reply, ECF No. 173 at 5-6. While Mr. Safarini does not

dispute that he procedurally defaulted—i.e., failed to timely

challenge his guilty plea on appeal on grounds of knowing and

voluntariness—he does assert that his default should be excused

because his “severe depression” establishes “cause.” 6 See Def.’s

6Mr. Safarini does not make a case for why his jurisdictional argument about the murder of a United States national should surpass the procedural default bar. Moreover, as the government points out, 18 U.S.C. § 2331 was enacted on August 27, 1986, as part of the Omnibus Diplomatic Security and Antiterrorism Act of 1986, just 9 days before the defendant and his co-defendants attempted to hijack Pan Am Flight 73. See 18 U.S.C. § 2331(c); Pub. L. 99-399, Title XII, § 1202(a), Aug. 27, 1986, 100 Stat. 896, § 2331, amended Pub. L. 102-572, Title X, § 1003(a)(1), Oct. 29, 1992, 106 Stat. 4521. The date cited by Mr. Safarini is that of an amendment which does not impact his case is any way. Furthermore, the legislation was specifically intended to address extraterritorial attacks on U.S. nationals by terrorists. See 132 Cong. Rec. H5944-05, 1986 WL 783573 (99th Cong. 2d Sess., August 12, 1986); H.R. Conf. Rep. 99-783, 99th Cong., 2d Sess. 88, reprinted in 1986 U.S. Code Cong. & Admin. News at 1960-61 (August 12, 1986). The argument thus fails both procedurally and on the merits.

28 Fourth Suppl., ECF No. 170 at 15-17. He also asserts that he has

established “prejudice” because “he will be saddled forever with

a plea that does not comport with due process and the Sixth

Amendment, that was taken in violation of Rule 11, and that

resulted in him being convicted of an offense he was innocent

of.” Id. The government does not specifically respond to the

procedural default defense, arguing on the merits that it is

“indisputable that the defendant entered into his guilty plea

both knowingly and intelligently.” Gov’t’s Surreply, ECF No. 162

at 8. The Court finds it unnecessary to reach the merits of Mr.

Safarini’s argument because it is barred by procedural default.

Even where a defendant waives the right to appeal or

collaterally attack his conviction as part of his plea

agreement, he does not waive the right to challenge that waiver

itself on the grounds that it was not knowing and voluntary.

Garza v. Idaho, 139 S. Ct. 738, 745 (2019); see also Guillen 561

F.3d at 529 (a waiver provision is enforceable if the decision

to waive that right is “knowing, intelligent, and voluntary”).

For a plea to be voluntary under the Constitution, a defendant

must receive “`real notice of the true nature of the charge

against him.’” United States v. Yong Ho Ahn, 231 F.3d 26, 33

(D.C. Cir. 2000) (quoting United States v. Dewalt, 92 F.3d 1209,

1211 (D.C. Cir. 1996) (internal citations omitted)). However,

where a defendant raises a non-ineffective-assistance-of-counsel

29 claim for the first time in a § 2255 motion, he must either: (1)

show cause for not raising the claim on appeal and prejudice

resulting from not being able to raise that claim now (“cause

and prejudice”); or (2) that he is “actually innocent.” Bousley,

523 U.S. at 623.

The “prejudice” Mr. Safarini claims to have suffered is

that “he will be saddled forever with a plea that does not

comport with due process and the Sixth Amendment, that was taken

in violation of Rule 11, and that resulted in him being

convicted of an offense he was innocent of.” Def.’s Fourth

Suppl., ECF No 170. at 15-17. The Court has already established

that these challenges, derivative of Mr. Safarini’s jurisdiction

argument, go to the merits of the prosecution rather than the

Court’s ability to hear the case. See supra Section IV.A.1. It

now turns to the merits of the jurisdiction argument, which

raises the question of whether Mr. Safarini was “actually

innocent of one of the charges he pled guilty to.” Def.’s Fourth

Suppl., ECF No. 170 at 17.

As stated above, Mr. Safarini asserts that he can be

charged with neither aircraft piracy, since the plane was not in

flight, nor with attempted aircraft piracy because, having

seized control and completed the offense on the ground, “the

aircraft would [not] have been within the special aircraft

jurisdiction of the United States had the offense of aircraft

30 piracy been completed.” Def.’s Fourth Suppl., ECF No. 170 at 6-7

(citing 49 U.S.C. App § 1472 (i)(3) (1982)). The government

responds that Mr. Safarini’s “conduct was contemplated and

intended by Congress to be punished under 49 U.S.C. App. § 1472

(i), as an attempted aircraft piracy, and the proof of facts, as

proffered by the government and pled to and acknowledged by the

defendant, fully supports his conviction of attempted aircraft

piracy.” Gov’t’s Omnibus Opp’n, ECF No. 151 at 25. The Court

agrees.

Although Mr. Safarini and his fellow hijackers seized

control of the aircraft, as required by the definition of

aircraft piracy, see 49 U.S.C. App. § 1472(i)(2) (1982); seizing

control was not enough to complete the attempt of aircraft

piracy. As Mr. Safarini himself concedes, aircraft piracy also

required that “the aircraft actually had to be “in flight” at

the time that the conduct occurred.” Def.’s Fourth Suppl., ECF

No. 170 at 6. Therefore, as the government asserts, although Mr.

Safarini and his co-defendants “seized control,” their conduct

constituted an “attempt[] to hijack the plane and to force the

cockpit crew to fly to Israel”; “[t]here was no proof that the

defendants committed a completed air piracy because the plane

never left the tarmac.” Gov’t’s Second Opp’n, ECF No. 172 at 7-

8. In contrast, as Mr. Safarini “pointedly” acknowledges, an

aircraft did not have to be in flight for conduct to be charged

31 as attempted aircraft piracy, see Def.’s Fourth Suppl., ECF No.

170 at 6; it merely had to “have been within the special

aircraft jurisdiction of the United States had the offense of

aircraft piracy been completed,” 49 U.S.C. App § 1472 (i)(3)

(1982).

In his pro se Motion to Clarify and Narrow the Issue Before

this Court and Move for Expedited Decision/Emergency Petition

Immediate Liberty Interest, Mr. Safarini relies on two cases not

cited in his previous pleadings to further his argument. See

Def.’s Second Suppl., ECF No. 168 at 2. However, these cases are

easily distinguished. In United States v. Lopez, 885 F.2d 1428,

1430 (9th Cir. 1989), one of the two defendants was convicted of

air piracy for commandeering a helicopter to assist in the

escape from prison of the other defendant. In United States v.

Mena, the defendant was convicted of air piracy after he

hijacked a seaplane en route from St. Thomas to Puerto Rico,

carrying a tin can that he claimed to be a “very sensitive

explosive device” and threatening to “blow up the aircraft” if

he was not flown to Cuba. 933 F.2d 19, 21-22 (1st Cir. 1991).

However, the holdings in Lopez and Mena both dealt with a

completed air piracy offense and therefore are irrelevant to the

defendant’s argument about the charge of Attempt to Commit Air

Piracy, and Mr. Safarini does not make a case for how they would

matter. The Court concludes that Mr. Safarini has not shown

32 prejudice or actual innocence to overcome the procedural default

bar for his argument that his plea was not knowing or voluntary. 7

See Bousley, 523 U.S. at 623.

Consequently, after accounting for the waiver of collateral

attacks in Mr. Safarini’s plea agreement, as well as procedural

default limitations, the only one of Mr. Safarini’s claims that

7 The Court also notes that the record shows both that Mr. Safarini had extensive notice of his plea and that he understood the charges against him. Mr. Safarini specifically acknowledged to the Court and in the presence of his counsel that (1) he was guilty of all 95 charges listed in the superseding indictment and that he was pleading guilty because he was in fact guilty (12/16/03 Tr. at 13, 16, 40); (2) he had had enough time to consider his plea of guilty and did not need any more time (12/16/03 Tr. at 13-14); (3) he understood the charges and maximum penalties (12/16/03 Tr. at 18, 25); (4) he had reviewed the elements of each of the 95 charges with his attorneys, that he understood them and that he had had ample opportunity to discuss the charges with his attorneys (12/16/03 Tr. at 14, 19- 20, 69); (5) he did not want the Court to repeat or review the elements of the 95 charges again because there was “no reason” (12/16/03 Tr. at 20); (6) he was waiving the right to pursue any collateral attacks, except for ineffective assistance of counsel (12/16/03 Tr. at 25, 44-45); (7) that the government’s factual proffer, consisting of 27 paragraphs, was accurate (12/16/03 Tr. 49-69); (8) he had read and understood the terms of the plea agreement before he signed it (12/16/03 Tr. at 15-16, 69); (9) he was satisfied with the services of his attorneys (12/16/03 Tr. at 11, 14); (10) he had had the opportunity to have the plea agreement translated into his native language, that he had declined that offer and that he had been able to read and understand the plea agreement as written in English (12/16/03 Tr. at 15, 46), (11) he was not entering into the plea agreement as a result of any threats, coercion, duress or any other improper influences (12/16/03 Tr. at 70); and, (12) that he had fully understood the plea agreement and that he was knowingly and voluntarily entering into the agreement of his own free will (12/16/03 Tr. at 69-70).

33 he may bring is ineffective assistance of counsel. As a

preliminary matter, however, this claim must still be timely to

be considered on the merits.

B. Mr. Safarini’s Ineffective Assistance of Counsel Claim Is Untimely Mr. Safarini’s only claim that circumvents his voluntary

plea agreement waiver is that “it was objectively unreasonable

of his counsel not to raise the issue of his competency prior to

allowing him to enter into the plea agreement.” Def.’s Reply,

ECF No. 159 at 7. 8 The government argues that Mr. Safarini’s

claims should be dismissed as time-barred. See Gov’t’s Second

Opp’n, ECF No. 172 at 15; Gov’t’s Omnibus Opp’n, ECF No. 151 at

9. Mr. Safarini responds that although untimely, the Court

should apply the doctrine of equitable tolling and excuse the

late filing of his § 2255 motion. See Def.’s Fourth Suppl., ECF

No. 170 at 4-5; Def.’s Reply, ECF No. 159 at 9-10. The

government replies that the doctrine of equitable tolling is

inapplicable because Mr. Safarini’s explanation for his late

filing does not establish “extraordinary circumstances” that

made it “impossible” for him to file a timely § 2255 motion. See

Gov’t’s Surreply, ECF No. 162 at 22-25. The Court agrees.

8 The Court need not address Mr. Safarini’s ineffective assistance of counsel argument based on lack of jurisdiction over attempted air piracy, see Def.’s Fourth Suppl., ECF No. 170 at 13-14; because, as discussed supra, Mr. Safarini did not present a jurisdictional issue.

34 Under § 2255(f), a defendant generally must file a § 2255

motion within one year of the date on which his conviction

becomes final. See Dodd, 454 U.S. at 357. A petitioner is

“entitled to equitable tolling” only if he shows “(1) that he

extraordinary circumstance stood in his way and prevented timely

filing.” Holland, 560 U.S. at 649. “‘To count as sufficiently

‘extraordinary,’ ... the circumstances that caused a litigant’s

delay must have been beyond [his] control’; in other words, the

delay ‘cannot be a product of that litigant’s own

misunderstanding of the law or tactical mistakes in

litigation.’” Head v. Wilson, 792 F.3d 102, 107 (D.C. Cir. 2015)

(quoting Menominee Indian Tribe of Wis. v. United States,

764 F.3d 51, 58 (D.C. Cir. 2014)).

As the government concedes, see Gov’t’s Second Opp’n, ECF

No. 172 at 14; the expanded record does show that Mr. Safarini

was, at times, “depressed,” “sad,” “devastated,” and

“irritable,” see Exhibit, ECF No. 166-2 at 4-5, 2l, 30, 45; see

also id. at 32 (“Inmate reports feeling depressed and somewhat

anxious about his upcoming sentencing”); id. at 27 (“Inmate

reports feeling a bit relieved about having a status hearing

today. He hopes things would not be too bad for him.”). While

Mr. Safarini’s emotions are understandable given his crimes and

life sentence, they do not equate to legal incompetence. See

35 Edmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996) (“The

issue is not mental illness, but whether the defendant ‘has

sufficient present ability to consult with his attorney with a

reasonable degree of rational understanding – and whether he has

a rational as well as factual understanding of the proceedings

against him.’”) (Internal citation omitted).

Mr. Safarini fails to direct the Court to anything within

the materials that specifically establishes an “extraordinary”

circumstance that prevented timely filing. To the contrary, the

record is conflicted at best, showing also that Mr. Safarini was

“expressive and cooperative” and that “he was doing okay but

mildly depressed,” Exhibit, ECF No. 166-2 at 32. At another

time, he “reported doing relatively well,” id. at 39.

Consequently, the Court concludes that equitable tolling is

unwarranted, and Mr. Safarini’s § 2255 claim is untimely.

C. The Writ of Coram Nobis Is Not Available to Mr. Safarini Because He is in Custody Mr. Safarini argues that if the Court concludes that § 2255

is not available to him “for procedural reasons such as

procedural default or untimeliness,” he should be permitted to

bring his claims pursuant to a petition for a writ of coram

nobis. See Def.’s Fourth Suppl., ECF No. 170 at 17-18. The

government counters that Mr. Safarini cannot use this writ

because he is in custody. See Gov’t’s Second Opp’n, ECF No. 172

at 20. Mr. Safarini replies that “[j]ust because coram nobis

36 relief is available to people who are not in custody does not

mean that it is categorically unavailable to people who are . .

..” Def.’s Second Reply, ECF No. 173 at 6. The Court concludes

that Mr. Safarini is not entitled to the writ of coram nobis.

A petition for a writ of coram nobis is “an extraordinary

remedy” that allows criminal defendants to attack their

convictions after they are no longer in custody. United States

v. Morgan, 346 U.S. 502, 511 (1954); United States v. Faison,

956 F. Supp. 2d 267, 269 (D.D.C. 2013). “Through a writ of error

coram nobis, the federal judge who imposed a sentence has the

discretionary power to set aside an underlying conviction and

sentence which, for a valid reason, should never have been

entered.” Id. (quoting United States v. Hansen, 906 F. Supp.

688, 692 (D.D.C. 1995)). Coram nobis is used when “a more usual

remedy is not available because [petitioner] is not in custody

for the conviction he challenges,” and “thus cannot attack his

conviction under 28 U.S.C. § 2255.” Id.; see also United States

v. Williams, 630 F. Supp. 2d 28, 30 (D.D.C. 2009).

Mr. Safarini argues that “it is hard to see why, when

seeking coram nobis relief, a person who cannot use § 2255

because he is no longer in custody should be any different than

a person who cannot use it for some other reason—like the

running of the limitations period,” Def.’s Second Reply, ECF No.

173 at 7; but he does not present a single case where coram

37 nobis has been extended to someone in custody. While the case

Mr. Safarini cites, United States v. Morgan, 346 U.S. 502, 511

(1954), does theoretically support the proposition that

prisoners “have rights of collateral attack beyond the confines

of § 2255,” Def.’s Second Reply, ECF No. 173 at 7; it is an

implausible stretch to suggest that the Supreme Court’s use of

the word “prisoners” in reference to collateral attacks other

than § 2255 is enough to extend the use of coram nobis to those

presently in custody. The Court concludes that being in custody

forecloses Mr. Safarini’s attempt to seek coram nobis relief.

D. No Further Hearings Are Required to Deny Mr. Safarini’s Claims Mr. Safarini requests an evidentiary hearing on the issue

of whether his plea was knowing and voluntary given his mental

state. See Def.’s Reply, ECF No. 159 at 7-8. The government

responds that “[b]ecause this case can be decided on the record,

no hearing is necessary.” Gov’t’s Omnibus Opp’n, ECF No. 151 at

27. The Court agrees.

The Court must grant an evidentiary hearing on a § 2255

motion unless “the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.”

28 U.S.C. § 2255 (1994). The question is whether “it plainly

appears from the face of the motion and any annexed exhibits and

the prior proceedings in the case that the movant is not

entitled to relief in the district court.” United States v.

38 Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996) (quoting Rules

Governing § 2255 Proceedings, Rule 4, 28 U.S.C. foll. § 2255

(1994)). Moreover, “a district judge's decision not to hold an

evidentiary hearing before denying a § 2255 motion is generally

respected as a sound exercise of discretion” when, as here, “the

judge denying the § 2255 motion also presided over the trial in

which the petitioner claims to have been prejudiced.” Id. Since

the record conclusively establishes that Mr. Safarini is not

entitled to relief, no further hearing is needed.

V. Conclusion For the foregoing reasons, (1) Defendant’s § 2255 Motion,

see ECF No. 141, is DENIED; (2) Defendant’s Suppl., see ECF No.

145, is DENIED; (3) Defendant’s Second Suppl., see ECF No. 168,

is DENIED; (4) Defendant’s Third Suppl., see ECF No. 169, is

DENIED; and (5) Defendant’s Fourth Suppl., see ECF No. 170, is

DENIED. An appropriate Order accompanies this Memorandum

Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge November 1, 2021