IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

: CIVIL ACTION

v. :

 : No. 12-cv-2951

MUMIN BASHEER, :

 : 

Defendant. : CRIMINAL ACTION

:

 : No. 05-cr-616-01

 :

MEMORANDUM AND ORDER

Joyner, J. June 19, 2013

This case is now before the Court on Defendant/Petitioner’s

Habeas Corpus Motions Under 28 U.S.C. § 2255 (ECF Nos. 75, 77). 

For the reasons set forth below, the Petitioner’s Motions are

DENIED.

I. BACKGROUND

In September 2006, a jury returned a guilty verdict against

the Petitioner, Mumin Basheer, of all three counts of an

indictment which charged him with possession with intent to

distribute cocaine base, a controlled substance, in violation of

21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of

a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g). On May 31, 2007, while awaiting sentencing, the

Petitioner filed a motion for judgment of acquittal pursuant to

Federal Rule of Criminal Procedure 29 and, simultaneously, a

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motion for a new trial pursuant to Federal Rule of Criminal

Procedure 33. This Court, noting that the Petitioner had not

timely filed either motion, nonetheless considered both on the

merits and denied them without a hearing. United States v.

Basheer, No. 05-cr-616-1, ECF No. 54 (E.D. Pa. June 21, 2007)

(order denying motion for judgment of acquittal and motion for

new trial).

On August 7, 2007, this Court sentenced the Petitioner to

252 months imprisonment, a $300 special assessment, a $1,500

fine, and 60 months of supervised release. The Court also

entered a judgment and order of forfeiture against the Petitioner

for several firearms and ammunition items.

Petitioner noticed his appeal of his conviction and sentence

to the Third Circuit Court of Appeals on August 23, 2007. In his

appeal, the Petitioner argued that: (1) insufficient evidence

supported his convictions; (2) this Court improperly granted the

Government's motion to include evidence of a prior conviction;

(3) this Court improperly admitted certain expert testimony; and

(4) this Court made several sentencing errors. The Court of

Appeals rejected the Petitioner’s arguments and affirmed his

conviction and sentence on December 7, 2010. See generally

United States v. Basheer, No. 07-3537, 2010 WL 4948960 (3d Cir.

Dec. 17, 2010).

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Petitioner then petitioned the Supreme Court of the United

States for a writ of certiorari. On June 6, 2011, the Supreme

Court denied certiorari. Basheer v. United States, 131 S. Ct.

2980 (2011). 

The Petitioner filed this petition for habeas corpus relief

pursuant to 28 U.S.C. § 2255 with this Court on May 29, 2012,

less than one year after the denial of his petition for

certiorari. In the petition, he asserts: (1) a Sixth Amendment

ineffective assistance of counsel claim at trial based on his

trial counsel’s failure to present the testimony of an available

witness, and (2) a due process claim based on insufficient

evidence to convict and his purported actual innocence.

The charges against the Petitioner stemmed from a narcotics

selling operation at an abandoned house in Philadelphia. In

several separate transactions on December 2, 2003, police

officers observed a juvenile receive money from a pedestrian or

passing motorist, enter the abandoned house, and give small

objects to the pedestrian or passing motorist. After arresting

one of the purchasers in one of these transactions, the police

officers discovered that the purchaser possessed narcotics. The

police officers arrested the juvenile and found him in possession

of $3.00. The police officers then entered the abandoned house,

where they encountered the Petitioner. The Petitioner fled on

foot. The officers who remained at the abandoned house

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discovered a number of firearms, ammunition items, narcotics, and

narcotics packaging material. Other officers pursued the

Petitioner and ultimately captured him. The Petitioner had

$1,470 on his person when the officers apprehended him. The jury

ultimately found that the Petitioner possessed the narcotics and

the firearms found in the abandoned home and that the Petitioner

was engaged in narcotics distribution. The jury accordingly

found the Petitioner guilty on all counts charged in the

indictment.

II. STANDARD

Section 2255 of Title 28 of the United States Code provides

an avenue for individuals under federal custody to challenge

their sentences. To succeed in such a challenge, the petitioner

must demonstrate 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(a). 

The Petitioner’s constitutional claims stem from (1) an alleged

Sixth Amendment violation, and (2) a due process violation based

on insufficient evidence of his guilt and his actual innocence of

the crimes of which the jury convicted him.

First, the Supreme Court of the United States has long

recognized that the right to counsel under the Sixth Amendment

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and the Due Process Clauses is crucial to protecting the

fundamental constitutional guarantee of a fair trial. See

Strickland v. Washington, 466 U.S. 668, 684-85 (1984). In order

to establish that counsel’s assistance was indeed ineffective, a

petitioner must meet both elements of the two-pronged test

established in Strickland. First, a petitioner must establish

that counsel not only erred, but that counsel’s errors were

considerable enough to undermine the proceedings to such an

extent that the outcome cannot be relied upon as fair and just. 

Id. at 687. Second, it must also be established that counsel’s

actions prejudiced the defendant and deprived defendant of a fair

and reliable trial. Id. at 687. “Not every ‘error by counsel,

even if professionally unreasonable, . . . warrant[s] setting

aside the judgment of a criminal proceeding.’” Rainey v. Varner,

603 F.3d 189, 197 (3d Cir. 2010) (quoting Strickland v.

Washington, 466 U.S. 668, 691 (1984)). A petitioner must

demonstrate that counsel’s error was prejudicial and that there

is a reasonable probability that were it not for the error the

outcome of the proceeding would have been different. Id. at 197-

98.

Second, defaulted § 2255 “claim[s] may still be reviewed in

[a] collateral proceeding if [the petitioner] can establish that

[a] constitutional error . . . has probably resulted in the

conviction of one who is actually innocent,” Bousley v. United

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States, 523 U.S. 614, 623 (1998), such that “‘in light of all the

evidence,’ ‘it is more likely than not that no reasonable juror

would have convicted him.’” Id. (quoting Schlup v. Delo, 513

U.S. 298, 327–328 (1995)). The Supreme Court has made it plain

that “ ‘actual innocence’ means factual innocence, not mere legal

insufficiency.” Id. Moreover, the Supreme Court has never held

that “actual innocence” is a freestanding, cognizable claim for

habeas corpus relief. See House v. Bell, 547 U.S. 518, 554–55

(2006); Herrera v. Collins, 506 U.S. 390, 400, 404 (1993). Even

if a freestanding actual innocence claim could form the basis for

habeas relief, such a claim could only succeed upon a showing

which met an “extraordinarily high” threshold. House, 547 U.S.

at 554-55.

III. DISCUSSION

The Petitioner asserts that his Sixth Amendment rights were

violated through deficient performance by his counsel and that

insufficient evidence supported his conviction. He also claims

that he is actually innocent of the crimes of which the jury

convicted him. None of the Petitioner’s claims has merit, so we

deny him habeas corpus relief. We discuss each of the

Petitioner’s claims in turn.

A. Failure to Call an Available Witness

The Petitioner alleges that his trial counsel provided

constitutionally deficient assistance because he did not avail

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himself of the opportunity to call the juvenile police observed

ferrying money and narcotics between the abandoned home and the

purchasers of the narcotics as a witness. (Pet’r Mot. at 15-17.) 

Specifically, the Petitioner argues that the juvenile would have

testified at trial as he did before the grand jury, that is, that

he did not know the Petitioner, that the weapons and narcotics in

the abandoned home belonged to him, and that the Petitioner was

not present in the abandoned house on December 2, 2003. (See

generally Pet’r App. Ex. A. (the “Grand Jury Testimony”).) We

deny habeas relief on this basis.

The Petitioner has not shown that his trial counsel’s

decision not to call the juvenile as a witness was so

unreasonable as to overcome the strong presumption that counsel’s

strategy “falls within the wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 689. Indeed, a lawyer may,

consistent with Strickland, decline to put on potentially

exculpatory testimony where he or she makes a reasonable,

informed decision that “calling . . . [the witness] . . . may

[be] more damaging to [the] defense than not calling him.” 

McAleese v. Mazurkiewicz, 1 F.3d 159, 170 (3d Cir. 1993).

Here, the Petitioner acknowledges that his trial counsel

received copies of the juvenile’s grand jury testimony. (Pet’r

App. Ex. C (the “Basheer Aff.”), ¶¶ 10-12.) He further

acknowledges that his trial counsel informed him that “[trial

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counsel] thought he could beat the case without [the juvenile].” 

Id. ¶ 12. The Petitioner has presented no evidence to suggest

that trial counsel’s decision not to call the juvenile and,

instead, to emphasize the juvenile’s absence from the

Government’s case constituted anything other than a reasonable

and informed tactical decision. Moreover, as the Government 1

aptly notes, the grand jury apparently rejected the juvenile’s

testimony and indicted the Petitioner anyway; based on this

experience, a reasonable, effective lawyer could easily conclude

that the petit jury would likely do the same and therefore quite

properly decline to put on the juvenile’s testimony. It follows

that, on this record, trial counsel’s conduct did fall so far

below the Strickland standard to warrant habeas relief.2

For the first time in his reply submission, the Petitioner argues that

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his trial counsel also rendered ineffective assistance when he failed to

consult with him about the decision not to call the juvenile as a witness or

share the content of the juvenile’s testimony before the grand jury. (Pet’r

Reply at 1-8.) “An attorney undoubtedly has a duty to consult with the client

regarding important decisions, including questions of overarching defense

strategy. . . . That obligation, however, does not require counsel to obtain

the defendant's consent to every tactical decision.” Florida v. Nixon, 543

U.S. 175, 187 (2004) (internal citations and quotations omitted). “[W]hich

witnesses to call is a classic tactical decision left to counsel, . . . and it

remains a decision for counsel even when the client disagrees.” United States

v. Chapman, 593 F.3d 365, 369 (4th Cir. 2010) (citing Blanco v. Singletary,

943 F.2d 1477, 1495 (11th Cir. 1991)); see also United States v. Williams, 106

F.3d 1362, 1367 (7th Cir. 1997) (“A lawyer's decision to call or not to call a

witness is a strategic decision generally not subject to review. The

Constitution does not oblige counsel to present each and every witness that is

suggested to him.”) (internal citations and quotations omitted). Here, trial

counsel’s decision not to call the juvenile or share the contents of his

testimony before the grand jury did not rise to the level of such fundamental

decisions that required his client’s knowledge or consent, so this argument

fails.

To the extent that the Petitioner claims that his trial counsel

2

rendered constitutionally ineffective assistance by failing to contact or

investigate several unnamed witnesses who saw the Petitioner enter the

abandoned house less than ten minutes before the officers entered and he fled

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A § 2255 motion is a safety net that ensures, among other

things, that all defendants are provided with their Sixth

Amendment right to counsel. It does not, however, provide

petitioners with an opportunity to second-guess counsel’s sound

trial strategy in an attempt to secure a second bite at the

apple. The Petitioner’s trial counsel here made an eminently

reasonable decision not to put on the juvenile’s testimony and,

instead, exploit the juvenile’s absence as a flaw in the

Government’s case. Therefore, the Petitioner’s argument that his

attorney was ineffective because he chose not to call the

juvenile as a witness lacks any merit. 

B. Sufficiency of the Evidence

The Petitioner claims that insufficient evidence supported

his convictions and that he is actually innocent of the crimes of

which the jury convicted him. (Pet’r Br. at 4-5.) This argument

does not warrant habeas relief.

As a general rule, § 2255 “may not be employed to relitigate

questions which were raised and considered on direct appeal.”

United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993). 

The record in this case reveals that the Petitioner challenged

(see Basheer Aff. ¶¶ 1, 13), the claim has no merit. The Petitioner presents

no evidence that any such witnesses exist, that he disclosed their purported

existence to trial counsel, or what testimony the purported witnesses might

have offered if his trial counsel had contacted them. The Petitioner

therefore cannot show that his trial counsel acted unreasonably or that any

claimed failings prejudiced him. See D’Amario v. United States, 403 F. Supp.

2d 361, 372 (D.N.J. 2005) (“Prejudice resulting from ineffective assistance of

counsel cannot be based on mere speculation as to what witnesses might have

said.”).

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the sufficiency of the evidence of his constructive possession of

narcotics and a firearm. The Court of Appeals held that there

was sufficient evidence to support the jury verdict and rejected

this argument. See Basheer, 2010 WL 4948960, at *1-2. 

Therefore, the Court cannot reconsider this claim for relief in

this § 2255 proceeding.

To the extent that the Petitioner attempts to assert a

freestanding actual innocence claim, we note that the Supreme

Court has never held that such a claim is cognizable. E.g.,

House, 547 U.S. at 554-55. We therefore have no authority to

grant the petition on this basis.

Even if we concluded that the Petitioner could assert a

freestanding actual innocence claim for habeas relief, the record

here would not warrant such relief. Again, a petitioner must

meet an “extraordinarily high” burden to justify such relief. 

House, 547 U.S. at 554-55. The Petitioner has not met such a

high standard. He points to no reliable, newly discovered

evidence which tends convincingly to show that he is actually

innocent. See Schlup v. Delo, 513 U.S. 298, 326-27 (1995). 

Instead, he merely recites the same arguments about purported

evidentiary deficiencies which the Court of Appeals rejected on

direct review and which we similarly reject here. Even if a

freestanding actual innocence claim could warrant habeas relief,

this showing would not justify it.

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IV. EVIDENTIARY HEARING

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

conclusively show that the prisoner is entitled to no relief, the

court shall cause notice thereof to be served upon the United

States attorney, grant a prompt hearing thereon, determine the

issues and make findings of fact and conclusions of law with

respect thereto.” 28 U.S.C. § 2255(b). Based on the analysis

above, we conclude that the motion, files, and records of this

matter conclusively show that the Petitioner is not entitled to

relief on any of his claims. Accordingly, we dispose of the

petition without need for an evidentiary hearing.

V. CERTIFICATE OF APPEALABILITY

Finally, the Court must determine whether a certificate of

appealability should issue. See Third Circuit Local Appellate

Rule 22.2. A certificate of appealability is appropriate only if

the petitioner “has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). The petitioner

must “demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this

case, we conclude that reasonable jurists could not find the

resolution of Petitioners’ claims debatable or wrong.

Accordingly, the Court will not grant the Petitioner a

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certificate of appealability with respect to his claims for

habeas relief.

VI. CONCLUSION

As discussed above, the Petitioner has no viable claim for

habeas corpus relief on any of the grounds he has raised.

Therefore, the Petitioner’s request for habeas relief is denied. 

An order follows.

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