Dritan Duka v. United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________

No. 20-2793
________________

DRITAN DUKA,
Appellant

v.

UNITED STATES OF AMERICA

________________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-13-cv-03664)
District Judge: Honorable Robert B. Kugler

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No. 20-2799
________________

SHAIN DUKA,
Appellant

v.

UNITED STATES OF AMERICA
 _____________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-13-cv-03665)
District Judge: Honorable Robert B. Kugler
________________

Argued: November 9, 2021

Before: HARDIMAN, MATEY, and SCIRICA, Circuit
Judges

(Opinion filed: March 8, 2022)

Stephen F. Downs
Kathy E. Manley [ARGUED]
26 Dinmore Road
Selkirk, NY 12158

Counsel for Appellants

Mark E. Coyne
John F. Romano [ARGUED]
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

Counsel for Appellee
_________________

OPINION OF THE COURT

2
 _________________

SCIRICA, Circuit Judge

Petitioner-Appellants Dritan and Shain Duka are each
serving multiple sentences for various crimes arising out of a
plot to attack the United States Army base at Fort Dix, New
Jersey, among other United States military bases and facilities.
Appellants moved for relief under 28 U.S.C. § 2255, primarily
contending their 18 U.S.C. § 924(c) convictions must be
vacated under United States v. Davis, 139 S. Ct. 2319, 2323–
24 (2019). On August 6, 2020, the United States District Court
for the District of New Jersey denied their motions for relief
under 28 U.S.C. § 2255. The trial judge declined to consider
the merits of Appellants’ challenge to their Section 924(c)
convictions, reasoning that, since they were each subject to an
unchallenged life sentence, any potential vacatur of their
Section 924(c) convictions would result in no practical change
to their confinement. In so finding, the trial judge invoked the
“concurrent sentence doctrine’s rationale,” J.A. 21, which
provides a court “discretion to avoid resolution of legal issues
affecting less than all of the counts in an indictment where at
least one count will survive and the sentences on all counts are
concurrent.” United States v. McKie, 112 F.3d 626, 628 n.4
(3d Cir. 1997). Appellants contend this invocation was an
abuse of discretion, and request we expand their certificates of
appealability to consider additional claims for relief previously
rejected by the District Court.

We will affirm the District Court’s judgment in full.

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 I. 1

A.

Appellants are a pair of Albanian-born brothers who
lived in New Jersey illegally. Along with a group of co-
defendants, the pair developed an interest in violent jihad and
committing attacks against the United States military.
Appellants were brought to the FBI’s attention when the
agency received a copy of a video dated January 2006 that
depicted Appellants and their co-defendants at a firing range in
the Pocono mountains shooting weapons and shouting “jihad
in the States.” United States v. Duka, 671 F.3d 329, 333–34
(3d Cir. 2011). Over the next sixteen months, the FBI deployed
two cooperating witnesses to monitor Appellants’ activities
and develop evidence against them. The FBI learned that in
2006 and 2007, Appellants took at least two trips to the Pocono
mountains to train for their jihad along with their co-
defendants. During these trips, Appellants fired weapons,
attempted to purchase automatic firearms, discussed their
jihadist plans, and watched violent jihadi videos, including
videos of “hundreds” of beheadings. Duka, 671 F.3d at 334.
Appellants also befriended Besnik Bakalli, an FBI informant
and fellow Albanian, and encouraged Bakalli to join their
planned jihad.
In January 2007, the brothers told Bakalli they had
acquired a shotgun, two semi-automatic rifles, and a pistol.
Evidently unsatisfied with their growing arsenal, Appellants

1
This summary of the relevant facts regarding the Appellants’
actions, trial, and convictions is drawn from our prior decision
regarding Appellants’ direct appeal, United States v. Duka, 671
F.3d 329 (3d Cir. 2011).

4
ordered nine fully automatic rifles from a contact in Baltimore.
In response, the FBI arranged a controlled transaction, and, on
May 7, 2007, Appellants visited the apartment of an FBI
cooperating witness with plans to retrieve these weapons.
After handing cash to the cooperator, Appellants examined and
handled four automatic machineguns and three semi-automatic
assault rifles. Appellants then asked for garbage bags to
conceal the weapons so they could bring them to their car. But
before they were able to do so, Appellants were intercepted and
arrested by federal and state law enforcement officers. The
entire transaction was captured on video by cameras the FBI
had installed in the cooperator’s apartment. All five co-
defendants were apprehended on May 7, 2007.

B.

Along with their co-defendants, Appellants were
charged under a superseding indictment filed on January 15,
2008. The superseding indictment charged Appellants with:

• Conspiracy to murder members of the U.S. military,
in violation of 18 U.S.C. §§ 1114 & 1117;

• Attempt to murder members of the U.S. military, in
violation of 18 U.S.C. § 1114;

• Possession or attempted possession of firearms in
furtherance of a crime of violence in violation of 18
U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(B)(ii);

• Possession of machineguns in violation of 18 U.S.C.
§ 922(o); and

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 • Two counts of possession of firearms by an illegal
alien in violation of 18 U.S.C. § 922(g)(5).

Appellants pled not guilty to all charges. After a two-
and-a-half-month jury trial, each Appellant was convicted on
the charges of conspiracy to murder members of the United
States military, possession or attempted possession of firearms
in furtherance of a crime of violence, possession of
machineguns, and two counts of possession of firearms by an
illegal alien. They received identical sentences as follows:

• Conspiracy to murder members of the U.S. military:
Life imprisonment.

• Possession or attempted possession of firearms in
furtherance of a crime of violence: 360 months’
imprisonment to run consecutively with their life
sentences.

• Possession of machineguns: 120 months’
imprisonment to run concurrently with their life
sentences.

• Possession of firearms by an illegal alien: 120
months’ imprisonment on each count, to run
concurrently with their life sentences.

C.

In the intervening years since their sentencing,
Appellants have launched several unsuccessful challenges to
their convictions. First, they, along with their co-defendants,
raised numerous challenges to their convictions on direct

6
appeal. See Duka, 671 F.3d at 336–56. On December 28,
2011, we rejected each of Appellants’ arguments and affirmed
the trial judge’s decision with respect to them. Id. at 333.

On June 13, 2013, Appellants filed a federal habeas
petition under 28 U.S.C. § 2255, making several different
claims, including contending they received ineffective
assistance of both trial and appellate counsel, and that the
Government withheld certain exculpatory information. After
an evidentiary hearing on one claim, the trial judge denied each
of Appellants’ asserted grounds for relief. Appellants filed for
a certificate of appealability, which we denied on February 6,
2017.

In February and April 2019, each Appellant a filed
motion for relief from judgment under Federal Rule of Civil
Procedure 60(b)(6). The basis of this motion was an assertion
that the trial judge failed to properly instruct the jury on the
appropriate mens rea for their conspiracy to commit murder
charge. In June 2019, the trial judge denied both motions.
Appellants appealed these decisions. Ultimately, Dritan Duka
voluntarily withdrew his appeal. But Shain Duka persisted
and, on January 22, 2020, we denied his request for a certificate
of appealability stating the “correctness of the challenged jury
instruction is not debatable.” Duka v. United States, No. 19-
2676, 2020 WL 8073724, at *1 (3d Cir. Jan. 22, 2020).

As these challenges were ongoing, the Supreme Court
decided Johnson v. United States, 576 U.S. 591, 597 (2015),
finding the residual clause of 18 U.S.C. § 924(e) violated due
process. On June 27, 2016, in parallel to the rest of their
appeals, Appellants filed a motion to vacate their Section
924(c) convictions, on the basis that their Section 924(c)

7
convictions were made under a residual clause parallel to the
one that the Supreme Court struck down in Johnson. 2 On
October 26, 2016, the trial judge denied this motion, finding it
was an unauthorized second or successive Section 2255
motion. Appellants filed a notice of appeal. But on July 31,
2019, Appellants and the Government jointly moved for a
remand of the appeal back to the District Court so the trial
judge could consider the impact of the intervening decisions of
United States v. Davis, 139 S. Ct. 2319, 2323–24 (2019) and
United States v. Santarelli, 929 F.3d 95 (3d Cir. 2019). We
granted this motion on October 4, 2019.

On remand, Appellants ultimately advanced three
arguments: First, their Section 924(c) convictions must be
vacated under Davis. And in light of the vacatur of these
sentences, the District Court should conduct a full resentencing
on their other convictions. Second, their convictions on the
conspiracy to murder charge must be vacated due to ineffective
assistance of trial and appellate counsel. And third, they are
actually innocent of the conspiracy to murder members of the
U.S. military.

On August 6, 2020, the trial judge denied Appellants’
petitions, rejecting each of these arguments. Most relevantly
to this appeal, the trial judge declined to decide Appellants’
challenge to their Section 924(c) convictions, reasoning that
since their life sentences were not being challenged, there
would be no practical effect of vacating the Section 924(c)
sentences. The trial judge noted “as a practical matter,

2
Appellants contended their reliance on Johnson was
appropriate as it was made retroactive by the Supreme Court in
Welch v. United States, 578 U.S. 120, 130 (2016).

8
[Appellants] will never serve their § 924(c) convictions due to
their life sentences on their conspiracy to murder convictions.”
J.A. 18. In making this finding, the trial judge invoked the
“concurrent sentence doctrine’s rationale.” J.A. 21. As the
trial judge explained, this doctrine applies where a petitioner
would remain subject to the same sentence and would not
suffer any unique collateral consequences rising to the level of
custody from the challenged convictions. Moreover, the trial
judge found even if he were to vacate the Section 924(c)
convictions, he would not need to conduct a full resentencing
given their unchallenged life sentences and the fact “[t]he §
924(c) convictions had no effect on this Court’s sentence as it
relates to Petitioners[’] conspiracy to murder convictions.”
J.A. 21.

With respect to the ineffective assistance of counsel
claims, the trial judge examined the inquiry outlined in
Strickland v. Washington, 466 U.S. 668 (1984), and found
Appellants failed to establish that their counsel’s performance
fell below an objective of standard of reasonableness.
Specifically, the trial judge referenced our decision denying a
certificate of appealability on Shain Duka’s April 2019 Rule
60(b) motion in which we stated that the correctness of the
complained-of jury instructions was “not debatable.”
Accordingly, counsel could not be faulted for their failure to
object to these instructions. Finally, the trial judge found, even
assuming Appellants could proceed on a stand-alone actual
innocence claim, they would fail to meet the appropriate
standard as they presented no new evidence that was not
available at trial.

The trial judge issued certificates of appealability solely
on the issue of whether “the concurrent sentence doctrine’s

9
rationale could be applied in this case.” J.A. 28. Appellants
timely appealed on that question and made a joint motion to
expand their certificates of appealability to include their
ineffective assistance and actual innocence claims. On March
11, 2021, a panel of our colleagues denied this motion.

Appellants now advance the substance of their
argument regarding the trial judge’s allusion to the concurrent
sentence doctrine, request we expand their certificate of
appealability to include their ineffective assistance and actual
innocence claims, and then proceed to make their substantive
arguments regarding those claims.

II.

Appellants contend the trial judge’s invocation of the
“rationale” of the concurrent sentence doctrine in declining to
vacate their Section 924(c) convictions was improper because
their challenged Section 924(c) convictions were to run
consecutively to—rather than concurrently with—their
unchallenged life sentences and because the Section 924(c)
convictions carried unique collateral consequences.

The concurrent sentence doctrine allows a court the
“discretion to avoid resolution of legal issues affecting less
than all of the counts in an indictment where at least one count
will survive and the sentences on all counts are concurrent.”
McKie, 112 F.3d at 628 n.4. The concept underlying this
doctrine is simple: there is no use expending the limited
resources of the litigants and the judiciary reviewing a
conviction where, regardless of the outcome, the defendant
will remain subject to the same sentence. Jones v. Zimmerman,
805 F.2d 1125, 1128 (3d Cir. 1986). This common-sense

10
approach preserves valuable and limited judicial resources for
deciding those cases which might actually result in practical
changes for the litigants. Id. (“The practice is eminently
practical and conserves judicial resources for more pressing
needs.”); see also Benton v. Maryland, 395 U.S. 784, 799
(1969) (White, J., concurring) (noting the concurrent sentence
doctrine is rooted in concerns “of fairness to other litigants”
because it enables the more efficient use of judicial resources);
Kassir v. United States, 3 F.4th 556, 565 (2d Cir. 2021)
(affirming invocation of concurrent sentence doctrine because
“[w]e reserve our judgment only for issues that, once resolved,
have some practical effect”).

We review a trial judge’s application of the concurrent
sentence doctrine for abuse of discretion. See Barnes v. United
States, 412 U.S. 837, 848 n.16 (1973) (describing what would
come to be known as the concurrent sentence doctrine as a
“discretionary matter”); McKie, 112 F.3d at 628 n.4
(describing the concurrent sentence doctrine as discretionary).
Accordingly, we will only reverse the decision of the trial
judge if “no reasonable person would adopt the district court’s
view.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265
(3d Cir. 2014) (quoting Oddi v. Ford Motor Co., 234 F.3d 136,
146 (3d Cir. 2000)).

A.

Appellants advance two potential justifications for
overturning the trial judge’s decision. Neither is persuasive.

First, Appellants contend the use of this doctrine was
improper as the challenged sentences were to run
consecutively to—rather than concurrently with—their

11
unchallenged life sentences. In fact, Appellants were
sentenced to 360 months’ imprisonment on their Section
924(c) convictions, to run consecutively to their life sentences.
But in the context of a sentence to run consecutively to an
unchallenged life sentence, that is a distinction without a
difference. Because their life sentences are unchallenged, even
a complete vacatur of their Section 924(c) sentences will not
reduce the time Appellants must serve in prison. Indeed, there
appears to be no dispute about this fact. Accordingly, the same
practical concern underlying the concurrent sentence doctrine
is present here, despite any semantic distinction in the posture
of their sentences. Appellants assert there are no judicial
resources to be conserved, as there was “nothing left to
decide.” Appellants’ Br. 7. But this is belied by their
contention that vacatur should result in a full resentencing.
Particularly in a case such as this, where the original sentencing
occurred over a decade ago, “[t]he social costs of retrial or
resentencing are significant, and the attendant difficulties are
acute.” Calderon v. Coleman, 525 U.S. 141, 146 (1998). At
bottom, Appellants’ request for the trial court to vacate their
Section 924(c) sentences will result in the expenditure of the
court and parties’ time and resources, with no possibility for
any cognizable change for the Appellants, even if their
challenge proved successful.

Accordingly, it was not an abuse of discretion for the
trial judge to preserve judicial resources by declining to
consider the substance of Appellants’ constitutional challenge
under the logic of the concurrent sentence doctrine. See Kassir,
3 F.4th at 569 (applying concurrent sentence doctrine to
decline review of challenged sentence where the petitioner was
subject to unchallenged life sentences); Ruiz v. United States,
990 F.3d 1025, 1033 (7th Cir. 2021) (applying the “same

12
considerations” that underlie the concurrent sentence doctrine
to decline review of sentence where petitioner was subject to
seven unchallenged consecutive life sentences); Oslund v.
United States, 944 F.3d 743, 746 (8th Cir. 2019) (finding no
error in district court’s application of the concurrent sentence
doctrine given an unchallenged consecutive life sentence).

Second, Appellants contend the concurrent sentence
doctrine is inapposite because their Section 924(c) convictions
subject them to unique collateral consequences. Specifically,
they note the $100 special assessment imposed as a result of
their Section 924(c) convictions. 3

While such a special assessment may serve as a basis
for an appellant to maintain a stake in attacking a conviction
on direct appeal, as explained by the Supreme Court in Ray v.
United States, 481 U.S. 736, 737 (1987) (per curiam), the same
is not true when making a collateral attack under Section 2255.
Unlike a direct appeal, the crux of a habeas proceeding is a

3
Appellants imply the Government bears the burden of
showing a lack of collateral consequences. Appellants are
incorrect. As we have repeatedly stated, if the petitioner argues
the concurrent sentencing doctrine is inappropriate because he
is subject to unique collateral consequences, the petitioner
bears the burden of identifying those unique collateral
consequences. See Gardner v. Warden Lewisburg USP, 845
F.3d 99, 104 (3d Cir. 2017) (affirming application of
concurrent sentence doctrine because petitioner “identifies no
such [collateral] consequences in his case, even as he
emphasizes this exception to the concurrent sentencing
doctrine”); United States v. Ross, 801 F.3d 374, 382–83 (3d
Cir. 2015) (similar).

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claimed right of relief from “custody.” United States v. Ross,
801 F.3d 374, 379 (3d Cir. 2015); 28 U.S.C. § 2255(a).
Custody is a restraint on individual liberty that is “(1) severe,
(2) immediate (i.e., not speculative), and (3) not shared by the
public generally.” Ross, 801 F.3d at 379. Accordingly, if a
petitioner does not claim relief from a severe restraint on his
individual liberty, he cannot maintain a federal habeas action.
Id. This differs from a direct appeal, which “allows for a
frontal attack on a conviction, a sentence, or both,” and is not
subject to this same limitation. Kassir, 3 F.4th at 565.

This distinction is at the core of our decision in Ross and
explains why Appellants’ reliance on Ray is misplaced. In Ray,
the Supreme Court addressed the application of the concurrent
sentence doctrine in the context of a direct appeal and not with
its application in a habeas action. 481 U.S. at 737. And as we
explained in Ross, “[t]he applicability of the concurrent
sentence doctrine on direct appeal is . . . distinct from the
question presented here, on collateral review under [S]ection
2255.” 801 F.3d at 382. Indeed, in Ross, we rejected the
precise argument Appellants advance here, finding “the
monetary component of a sentence is not capable of satisfying
the ‘in custody’ requirement of federal habeas statutes.” Id. at
380. Consequently, the $100 special assessment applied under
their Section 924(c) sentences is not a cognizable basis for
relief in this Section 2255 proceeding. See Gardner v. Warden
Lewisburg USP, 845 F.3d 99, 104 (3d Cir. 2017) (“[B]ecause
collateral attacks can challenge only a prisoner’s custody,
special assessments are not reviewable in habeas corpus
proceedings.”); see also Ryan v. United States, 688 F.3d 845,
849 (7th Cir. 2012) (“A collateral attack under § 2241, § 2254,
or § 2255 contests only custody, however, and not fines or
special assessments.”).

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 In sum, the trial judge’s invocation of the rationale of
the concurrent sentence doctrine was proper given Appellants’
unchallenged life sentences and the lack of any unique
cognizable collateral consequences stemming from
Appellants’ Section 924(c) convictions.

III.

Appellants also request we reconsider the decision of
the motions panel and expand their certificates of appealability
to allow them to advance their ineffective assistance of counsel
and actual innocence claims.

A merits panel can, in its discretion, expand the
certificate of appealability should the panel deem it necessary.
Villot v. Varner, 373 F.3d 327, 337 n.13 (3d Cir. 2004). But a
merits panel should “not lightly overturn a decision made by a
motions panel during the course of the same appeal.” Council
Tree Commc’ns, Inc. v. FCC, 503 F.3d 284, 292 (3d Cir. 2007).
And we will decline to do so in this case, as Appellants do not
provide any compelling reason to revisit the decision of the
motions panel.

Apart from cosmetic changes, Appellants present us
with a nearly identical brief to the one they filed with the
motions panel. Appellants’ minor alterations, such as
changing “Petitioners” to “Appellants” and reversing the order
of the presentation of the issues, do nothing to convince us the
motions panel erred in its decision. Appellants’ one
substantive addition, an analogy to the January 6, 2021 United
States Capitol riot, fares no better. Despite claiming it is
“instructive to compare this case to what occurred at the
Capitol on January 6, 2021,” Appellant’s Br. 36, Appellants

15
make no effort to explain what about this comparison or their
lengthy quotation from Wikipedia would justify exercising our
discretion to expand their certificates of appealability.

In sum, we will decline to exercise our discretion to
expand the certificate of appealability to incorporate
Appellants’ ineffective assistance and actual innocence claims.
Accordingly, we will decline to consider the merits of these
issues. See 3d Cir. L.A.R. 22.1(b) (“[T]he court of appeals will
not consider uncertified issues unless appellant first seeks, and
the court of appeals grants, certification of additional issues.”);
Villot, 373 F.3d at 337 n.13 (“We may not consider issues on
appeal that are not within the scope of the certificate of
appealability.”).

IV.

For the foregoing reasons, we will affirm the district
court’s judgment in full. 4

4
Because we affirm the District Court’s decision, we need not
address Appellants’ request that we direct any further
proceedings on remand to a different trial judge.

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