1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

 v.

SHAMSUD-DIN ALI

: 

: CRIMINAL ACTION NO. 04-611-1

: 

:

:

MEMORANDUM AND ORDER

Kauffman, J. December 9 , 2008

On April 20, 2005, Shamsud-Din Ali (“Petitioner”) pled guilty to four counts of tax

evasion, in violation of 26 U.S.C. § 7201. Subsequently, on June 14, 2005, following a trial by

jury, he was found guilty of twenty-two counts of the Superseding Indictment, including one

count of racketeering, in violation of 18 U.S.C. § 1962(c); one count of racketeering conspiracy,

in violation of 18 U.S.C. § 1962(d); two counts of conspiracy to commit mail fraud, in violation

of 18 U.S.C. § 371; three counts of mail fraud, in violation of 18 U.S.C. § 1341; eleven counts of

interstate travel in aid of racketeering, in violation of 18 U.S.C. § 1952; one count of bank fraud,

in violation of 18 U.S.C. § 1344; and three counts of extortion, attempted extortion, and

conspiracy to commit extortion, in violation of 18 U.S.C. § 1952. 

On September 21, 2005, the Court sentenced Petitioner to a total of 87 months

imprisonment, five years of supervised release, $365,440.34 in restitution, and a $2,600 special

assessment. Petitioner appealed his conviction and the Third Circuit affirmed. See United States

v. Ali, 493 F.3d 387 (3d Cir. 2007). Now before the Court is Petitioner’s Motion to Vacate, Set

Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (the “Motion”). He argues that he is

entitled to relief on five grounds, all based on the premise that his attorney throughout the

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proceedings (“Counsel”) provided him with ineffective assistance. For the reasons that follow,

the Motion will be denied.

I. LEGAL STANDARD

The Sixth Amendment of the United States Constitution establishes the right to effective

assistance of counsel. To demonstrate a Sixth Amendment violation, Petitioner must prove: (1)

that his “counsel’s performance was deficient” and (2) that the deficient performance prejudiced

him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Petitioner’s burden under the first

prong of Strickland is to show that his counsel’s representation fell below an “objective standard

of reasonableness.” Id. at 688. The Court must “indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Id. at 689. Under the second prong of the Strickland test, “[i]t

is not enough for the [petitioner] to show that the errors had some conceivable effect on the

outcome of the proceeding.” Id. at 693. The question, instead, is whether “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. at 694.

II. ANALYSIS

A. Failure to Object to the Expunged Conviction in the Wiretap Affidavit 

Petitioner claims that Counsel should have objected to evidence obtained via a wiretap

because the affidavit used by the Government to obtain permission to conduct the wiretap

contained a reference to Petitioner’s expunged conviction. The affidavit stated in relevant part as

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Petitioner does not contend that any party mentioned his expunged conviction to 1

the jury.

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follows:

In October 1973, [Shamsud-Din Ali] was convicted of the murder of Reverend Clarence

M. Smith, a rival religious leader who was allegedly murdered because he preached

against criminal activity in the Muslim community. ALI was sentenced to life

imprisonment and spent approximately five years in state prison. ALI was released from

prison after his conviction was overturned by the Pennsylvania Supreme Court. ALI was

granted a new trial, but the charges were eventually dropped because the only eyewitness

in the case, the daughter of Reverend Smith, was threatened and refused to testify. 

Thereafter, Pennsylvania State Legislator K. Leroy [I]rvis proposed a bill, which later

passed, which allowed the record of ALI’s conviction to be expunged and granted ALI

approximately $100,000 in reparations to compensate him for the time he spent in prison.

Affidavit of Jesse L. Coleman ¶ 16c, at 16–17. Petitioner argues that, based upon the above

paragraph, Counsel should have sought the exclusion of evidence obtained via the wiretap at

trial. 

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Petitioner fails to meet the first prong of Strickland. Pursuant to Franks v. Delaware, 438

U.S. 154 (1978), evidence may be excluded when it is obtained via a warrant supported by an

affidavit that contains intentional or reckless misrepresentations of fact that were material to the

probable cause finding. However, Petitioner has not alleged that the above-quoted affidavit

contained any misrepresentation of fact. Instead, he acknowledges the truth of much of its

contents in his Petition, stating “[t]he Pennsylvania Supreme Court had overturned the

conviction, and the [C]ourt of [C]ommon [P]leas of Philadelphia County . . . ordered that all

arrest, conviction and criminal records, [including] incarceration in Graterford State Prison[,] be

expunged.” Pet. 5. Nor can Petitioner show that the statement was material to the probable

cause finding, as is required by Franks; the statement constituted only a small part of the 116-

page affidavit, which contained information from eight cooperating witnesses and six informants. 

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See Resp. 8. With so much other supporting information in the affidavit, it is unlikely that the

judge reviewing the wiretap application would have placed much weight on the paragraph

concerning the expunged conviction. 

Petitioner has not provided, nor can the Court find, authority pursuant to which a single

true paragraph in a long and detailed affidavit can justify the exclusion of evidence. 

Accordingly, Counsel did not fall below an objective standard of reasonableness by failing to

argue for exclusion on such a basis. See United States v. Briceno-Rodriguez, 47 F. App’x 167,

170 (3d Cir. 2002) (“[C]ounsel could not be deficient in failing to raise a frivolous argument.”);

Chapman v. United States, 74 F. App’x 590, 593 (6th Cir. 2003) (“Counsel is not required by the

Constitution to raise frivolous defenses or arguments to avoid a charge of ineffective

representation.” (citing Krist v. Foltz, 804 F.2d 944, 946–47 (6th Cir. 1986))). 

B. Failure to Request a Mistrial When the Government Alluded to Drugs

The Government presented evidence at trial of Petitioner’s solicitation and acceptance of

payments from drug dealers as a part of its racketeering case. Petitioner argues that Counsel

should have moved for a mistrial when the Government referred to drugs even though none of

the Defendants in the case was charged with drug crimes. 

Counsel pursued objections to the evidence vigorously, through a motion in limine,

objections at trial, a post-trial motion for a new trial, argument at sentencing, and appeal. 

Throughout the proceedings, Counsel argued that the drug references were both irrelevant and

unduly prejudicial. While the Court found that the evidence was relevant to proving the

existence of an enterprise in the Government’s racketeering case and that it was not unduly

prejudicial, Counsel succeeded in obtaining jury instructions emphasizing the limited purpose of

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Whether, and when, to move for a mistrial is a tactical decision that is within the 2

exclusive province of the lawyer. See Virgin Islands v. Weatherwax, 77 F.3d 1425 (3d Cir.

1996). 

The Third Circuit held that this Court did not abuse its discretion in finding that 3

the drug evidence was relevant to the Government’s racketeering case and “thoroughly and

carefully balanced the probative value and prejudicial impact of the evidence.” Id. at 391–93. 

The Court may “choose to address the prejudice prong before the ineffectiveness 4

prong and reject an ineffectiveness claim solely on the ground that the defendant was not

prejudiced.” Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir. 2006). 

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the drug evidence. Given counsel’s many objections to the use of the drug evidence, the Court

finds that he pursued his arguments on his client’s behalf with appropriate professional zeal.2

Moreover, Petitioner cannot prove prejudice because a motion for mistrial would not have been

successful. This Court denied the motion in limine to exclude the drug evidence before trial and

the post-trial motion for a new trial based on admission of the drug evidence, and the Third

Circuit affirmed those rulings on appeal. See Ali, 493 F.3d at 387.3

C. Failure to Seek Removal of the Expunged Conviction from the Pre-Sentence

Report

Petitioner argues that Counsel should have objected to the inclusion of his expunged

conviction in the Pre-Sentence Report. However, even assuming arguendo that it was error for

the Probation Office to include such information, Petitioner cannot establish that Counsel’s

failure to object to its inclusion caused him prejudice. The information did not affect

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Petitioner’s calculated guideline range. See Sentencing Mem. of Gov’t; Sept. 19, 2005 Tr. of

Sentencing. Moreover, the Court did not refer to the expunged conviction in imposing the

sentence. See Sept. 19, 2005 Tr. of Sentencing. Indeed, the Court imposed a sentence at the

bottom of Petitioner’s guideline range despite the nature and the severity of the twenty-six counts

for which he ultimately was adjudged guilty. Mere speculation that the expunged conviction

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Again, Petitioner did not object to the Pre-Sentence Report at sentencing despite 5

being given the opportunity to do so. See Part II.C supra. 

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 might have influenced the

Court is not enough to establish prejudice pursuant to Strickland. See, e.g., Bradford v. Whitley,

953 F.2d 1008, 1012 (5th Cir. 1992) (mere speculation insufficient to establish prejudice); Cooks

v. Spalding, 660 F.2d 738, 740 (9th Cir. 1981) (same).

Additionally, Petitioner had the opportunity at sentencing to object to the inclusion of his

expunged conviction in the Pre-Sentence Report, but he chose not to do so. At sentencing, the

Court had the following colloquy with Petitioner and Counsel:

THE COURT: [Counsel], have you reviewed the pre-sentence report?

COUNSEL: I have, sir.

THE COURT: And have you discussed it with Mr. Ali?

COUNSEL: I have, sir.

THE COURT: You haven’t filed any objections, so I assume there are none?

COUNSEL: No, sir, there are none.

THE COURT: Thank you, sir. Mr. Ali, do you agree with that?

DEFENDANT: Yes, sir.

D. Failure to Contest the Sentence

Petitioner argues that Counsel failed “to argue the sentence, length of time and

condition[s].” Specifically, Counsel did not object to any aspect of the Pre-Sentence Report. He 5

also did not argue for a lighter sentence based upon any specific factors of 28 U.S.C. § 3553(a). 

Nevertheless, Petitioner cannot overcome the presumption required by Strickland that Counsel’s

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Petitioner admitted guilt to four counts of tax evasion in addition to the twenty- 6

two counts for which he was convicted by jury. 

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efforts met objectively reasonable professional standards. Counsel zealously highlighted the

number of favorable character witnesses from trial who had attended sentencing without being

asked to do so, and he reiterated Petitioner’s objections to the drug evidence. He also reminded

the Court of the favorable character evidence presented about Petitioner at trial. His strategy

succeeded in obtaining for Petitioner a sentence at the bottom of his Guideline range despite the

gravity of the many charges for which he had been convicted. Strickland requires that courts

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give attorneys wide latitude in their choices at sentencing. See Ducato v. United States, 315 F.3d

729, 730–31 (7th Cir. 2002) (failure of attorney to present mitigation witnesses at sentencing

“too uncertain” to justify reversal); United States v. Ruzzano, 247 F.3d 688, 697 (7th Cir. 2001)

(mere possibility of different sentence “falls short of the required showing of a reasonable

probability that the sentence would have been different”); King v. Kemna, 266 F.3d 816, 825

(8th Cir. 2001) (possibility that diminished capacity evidence might have persuaded the court to

impose a more lenient sentence is “rank speculation”); United States v. Green, 680 F.2d 183,

189–90 (D.C. Cir. 1982) (the possibility that counsel could have “more eloquent[ly]” presented

mitigation evidence at sentencing is “pure speculation”). In the instant case, Counsel’s strategy

was both objectively reasonable and effective in fact, and it is not enough for Petitioner to

hypothesize that additional arguments might have had a beneficial effect. See Andrashko v.

Borgen, 88 F. App’x 925, 929 (7th Cir. 2004) (“[Petitioner’s] only argument on prejudice is that

it ‘would have been beneficial to [his] cause’ had his counsel attempted to rebut the State’s

arguments and present mitigating evidence at sentencing. However, Strickland requires more

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The Government opposed Counsel’s request both at sentencing and subsequently

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in a Motion for Reconsideration.

Petitioner argues only that Counsel should have raised additional issues, not that 8

he performed poorly in arguing the issue raised. 

8

than a showing that the evidence would have been beneficial; the mere possibility of a positive

effect on the trial court’s sentencing decision is too speculative a basis for relief.”)

Counsel also persuaded the Court, over vigorous Government objections, to allow

Petitioner to remain free on bail until his appeal was decided. While he did not make any other 7

requests regarding sentencing, he may have had a sound strategic goal in mind with his choice. 

He may have believed that, by making only one significant request, it was more likely that it

would be granted. Given the success and possible strategic basis for Counsel’s efforts, the Court

cannot find that his performance fell below an objective standard of reasonableness. 

E. Failure to “Present an Adequate Appeal”

In his final ground for relief, Petitioner argues that Counsel performed inadequately on

appeal because he raised only the Government’s references to drugs and no other issue.8

However, Petitioner fails to meet the first prong of Strickland. It “is a well established principle

that counsel decides which issues to pursue on appeal, and there is no duty to raise every possible

claim.” Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (citing Jones v. Barnes, 463 U.S.

745, 751–52 (1983)). Instead, “[a]n exercise of professional judgment is required [because]

[a]ppealing losing issues ‘runs the risk of burying good arguments . . . in a verbal mound made

up of strong and weak contentions.’” Id. (quoting Jones, 463 U.S. at 753). 

In the instant case, Counsel exercised his professional judgment by pursuing what he

believed was the strongest issue on appeal. See Pet. 6 (stating that Petitioner relied on Counsel’s

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belief that the reference to drugs was the key issue in the case). While the appeal was ultimately

unsuccessful, see Ali, 493 F.3d at 387, Counsel performed adequately by selecting an appellate

strategy that was not unreasonable. See Marshall v. Hendricks, 307 F.3d 36, 105 (3d Cir. 2002)

(“[I]n order to assess counsel’s performance objectively, reviewing courts must resist the

temptation of hindsight, instead determining whether, given the specific factual setting, and

counsel’s perspective at the time, his strategic choices were objectively unreasonable.” (citing

Strickland, 466 U.S. at 689)). 

III. CONCLUSION

For the foregoing reasons, Petitioner’s claims for relief are without merit. Accordingly,

his Motion will be denied. Because Petitioner has not made the requisite showing “that

reasonable jurists would disagree” concerning his claims, a certificate of appealability should not

issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Case 2:04-cr-00611-MMB Document 376 Filed 12/10/08 Page 9 of 10
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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

 v.

SHAMSUD-DIN ALI

: 

: CRIMINAL ACTION NO. 04-611-1

: 

:

:

ORDER

AND NOW, this 9th day of December, 2008, upon consideration of Petitioner’s

Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (docket no. 365),

and the Government’s Response thereto (docket no. 370), it is ORDERED that the Motion is

DENIED. Additionally, because there is no probable cause to issue a certificate of appealability,

no certificate of appealability shall issue. 

BY THE COURT:

 S/ BRUCE W. KAUFFMAN 

BRUCE W. KAUFFMAN, J.

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