United States District Court, D. New Jersey
B. KUGLER UNITED STATES DISTRICT JUDGE
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). 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
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).
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
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).
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).
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.
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.