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Duka v. United States

United States District Court, D. New Jersey

June 12, 2019

DRITAN DUKA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          ROBERT B. KUGLER UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner, Dritan Duka, is a federal prisoner. Previously, this Court denied petitioner's § 2255 motion to vacate, set aside or correct his sentence. Presently pending before this Court is petitioner's motion for relief from judgment filed pursuant to Federal Rule of Civil Procedure 60(b)(6).[1] Additionally, respondent has filed a motion to file a sur-reply. For the following reasons, respondent's motion to file a sur-reply is granted and petitioner's motion for relief from judgment will be denied.

         II. BACKGROUND

         The factual background giving rise to petitioner's federal convictions was previously discussed by this Court. (See ECF No. 39). Briefly, petitioner, along with his two brothers, Shain Duka and Eljvir Duka, as well as Mohamed Shnewer and Serdar Tatar were convicted of conspiracy to murder members of the United States military amongst other charges after a lengthy trial in 2008. The United States Court of Appeals for the Third Circuit affirmed petitioner's judgment of conviction in 2011. See United States v. Duka, 671 F.3d 329 (3d Cir. 2011).

         Thereafter, petitioner filed a motion to vacate, set aside or correct his sentence. Among the claims raised in that motion were several ineffective assistance of counsel claims; they were: (1) denial of the right to testify; (2) failure to request a First Amendment jury instruction; (3) failure to object to expert testimony; (4) failure to request juror voir dire after juror reaction; (5) failure to argue that a conversation was admissible under Federal Rule of Civil Procedure 803(3); (6) failure to request a hearing on a missing recording.[2]

         On September 30, 2015, this Court denied all of petitioner's claims, except for an ineffective assistance of counsel claim related to petitioner's purported denial of his right to testify. (See ECF Nos. 39 & 40). Thereafter, this Court conducted an evidentiary hearing on that claim. That claim was ultimately also denied on May 31, 2016. (See ECF Nos. 58 & 59).

         On June 27, 2016, petitioner (along with his two brothers), filed a motion to set aside the judgment. (See ECF No. 60). That motion sought to set aside his conviction for violating 18 U.S.C. 924(c) “based on the supreme Court's ruling in Welch v. United States, 578 U.S. -, 126 S.Ct. 1257 (2016) (slip. Op.) that the holding in Johnson v. United States, 125 S.Ct. 2551 (2015) was retroactive.” (ECF No. 60 at 4). This Court denied that motion on October 26, 2016, but granted a certificate of appealability on the question of whether petitioner needed to obtain authorization from the Third Circuit to proceed with the claim he raised in his motion to set aside judgment. (See ECF Nos. 67 & 68).

         On February 6, 2017, the Third Circuit denied a certificate of appealability arising from this Court's decision to deny petitioner's § 2255 motion. (See ECF No. 71).

         Two years later, petitioner filed the instant motion for relief from judgment. (See ECF No. 72). In the motion, petitioner claims as follows:

Malice aforethought is a necessary element of the crime of conspiracy to commit murder in violation of 18 U.S.C. § 1117. But, at trial in this matter, the Court not only failed to instruct the jury as to malice aforethought, but, it affirmatively instructed the jury that the jury did not have to find malice aforethought. As Duka thus currently stands convicted of conspiracy to commit involuntary manslaughter, a non-existent offense, Duka is actually innocent, and, both trial counsel, and, post-conviction counsel, rendered ineffective assistance, making relief pursuant to Fed.R.Civ.P. 60(b)(6) appropriate.

(ECF No. 72 at 2) (internal citations omitted). Petitioner makes clear that he is attempting to bring two ineffective assistance of counsel claims against his § 2255 counsel to overcome any issues this Court would have in raising new ineffective assistance of trial counsel claims in his Rule 60(b) motion; namely (1) § 2255 counsel failed to raise the issue of trial counsel's failure to move to dismiss the indictment because the indictment failed to charge malice aforethought; and (2) § 2255 counsel failed to raise the issue of trial counsel's failure to object the improper jury instructions. The government filed a response in opposition to petitioner's motion. Petitioner thereafter filed a reply to which the government filed a motion for leave to file a sur-reply.

         III. ...


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