Saleh v. United States

Background

Redhwan Saleh challenged his 2018 federal convictions for one count of arson under 18 U.S.C. § 844(i) and one count of conspiracy to commit arson under 18 U.S.C. § 371. The government’s trial evidence included testimony from a cooperating arsonist, law-enforcement witnesses, the owner of the new deli, phone records, and physical evidence from the fire. The jury returned guilty verdicts on both counts. Saleh received a 63-month prison sentence, three years of post-release supervision, and a $50,000 restitution order. The Second Circuit later rejected his direct-appeal arguments and affirmed the district court’s judgment.

Saleh filed the present petition under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to seek correction or cancellation of a sentence based on certain constitutional, jurisdictional, or fundamental legal errors. He proceeded without a lawyer. His main claims alleged ineffective assistance of counsel. He argued that his lawyers advised him not to testify, failed to call Richard Sanchez as a witness, and did not present a complete defense. Saleh also filed a supplemental petition asserting that he had found new evidence, which consisted primarily of the United States Constitution, the Articles of Confederation, and an affidavit denying his guilt.

Legal Standards

To establish ineffective assistance of counsel, a petitioner must show both that counsel’s performance fell below an objectively reasonable standard and that there was a reasonable probability that the alleged errors affected the outcome. Courts give substantial deference to strategic trial decisions, including decisions about which witnesses to call and whether a defendant should testify.

A court generally must hold a hearing on a § 2255 motion unless the motion and the existing record conclusively show that the prisoner is not entitled to relief. The court also may not reconsider issues already decided, or necessarily resolved, on direct appeal. A claim based on new evidence must rely on evidence that could not reasonably have been discovered before trial.

Court’s Analysis

Trial strategy. The court found that Saleh’s lawyers presented a reasonable defense. They cross-examined all of the government’s witnesses, challenged the cooperating witness’s credibility using prior inconsistent statements and criminal history, questioned other witnesses about possible alternative perpetrators, and challenged the phone records and the detective’s testimony. The court concluded that these tactics could have caused the jury to doubt the government’s case.

The court also rejected Saleh’s argument that the lawyers should have presented evidence that he owned only 25 percent of the deli. Even if that evidence had been introduced, the court reasoned, partial ownership would not eliminate his possible motive to prevent a competing deli from opening. The court further found it unlikely that the evidence would have changed the verdict.

Decision not to testify. Saleh claimed that his lawyers told him there was no need for him to testify because they believed the defense had already won. His trial lawyers disputed that account and stated that they had discussed his right to testify with him more than ten times, prepared him to testify, and understood that the decision was his. The trial record showed that Judge William H. Pauley, III asked Saleh whether he wished to testify and that Saleh answered no.

The court found that Saleh had been properly advised of his right to testify and that the decision not to testify was his alone. Even assuming that counsel had recommended against testifying, the court held that the recommendation could have been reasonable trial strategy because Saleh might have faced difficult questioning about his interactions with police, phone records, and the cooperating witness’s testimony. The court also found it unlikely that Saleh’s proposed testimony would have changed the outcome given the government’s evidence.

Failure to call Richard Sanchez. Saleh argued that his lawyers should have called Sanchez, an alleged co-conspirator, as a defense witness. The court held that not calling Sanchez was reasonable because Sanchez might have provided additional information about Saleh’s role in the conspiracy or otherwise harmed the defense. Saleh’s petition did not identify specific exculpatory facts that Sanchez would have offered. The court also found it unlikely that Sanchez’s testimony would have changed the verdict.

New-evidence claim. The court treated Saleh’s supplemental filing as a request to amend the original petition. It rejected the claim because the Constitution, the Articles of Confederation, and Saleh’s affidavit denying guilt were not new factual evidence or testimony related to the charges and did not satisfy the requirement for newly discovered evidence.

Disposition

In Saleh v. United States, Judge Andrew L. Carter, Jr. denied Saleh’s § 2255 petition. The court stated that Saleh had not made the required substantial showing of a constitutional violation and therefore did not grant a certificate of appealability. The court also noted that Saleh’s separate motions for compassionate release had been denied earlier, directed the clerk to terminate the motions listed in the order, and directed that the order be entered in the related case. The opinion does not state that the § 2255 petition was denied with or without prejudice.