20-3174
Al-’Owhali v. United States
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2021
No. 20-3174
MOHAMED RASHED DAOUD AL-’OWHALI,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee. *
On Appeal from the United States District Court
for the Southern District of New York
SUBMITTED: FEBRUARY 28, 2022
DECIDED: JUNE 8, 2022
Before: WALKER, MENASHI, and LEE, Circuit Judges.
In 1998, Petitioner-Appellant Mohamed Rashed Daoud
Al‑’Owhali participated in the bombings of American embassies in
Africa. The attacks killed 224 people. In 2001, he was convicted of 266
* The Clerk of Court is directed to amend the caption as set forth above.
counts and sentenced to 264 concurrent life terms of imprisonment,
to be followed by a consecutive 10-year term of imprisonment, in turn
to be followed by a consecutive 30-year term of imprisonment. He
later filed a motion under 28 U.S.C. § 2255 to vacate his conviction for
using an explosive device during a crime of violence in violation of 18
U.S.C. § 924(c). That conviction yielded the 30-year sentence that is to
follow his other terms of imprisonment. Al‑’Owhali argues that the
conviction’s predicate offense no longer qualifies as a “crime of
violence” following United States v. Davis, 139 S. Ct. 2319 (2019).
We decline to consider Al‑’Owhali’s claim because, under the
concurrent sentence doctrine, the claim need not be reviewed. That
doctrine allows a court to decline to review a challenged sentence
when another is valid and carries the same or greater duration of
punishment, such that the overall sentence would not change even if
the challenge were successful. We hold the doctrine applies when, as
in this case, a prisoner challenges a conviction and resulting sentence
that runs consecutively to one or more unchallenged life sentences.
Mohamed Rashed Daoud Al‑’Owhali, pro se, Marion, IL,
for Petitioner-Appellant.
Stephen J. Ritchin, Won S. Shin, Assistant United States
Attorneys, for Damian Williams, United States Attorney
for the Southern District of New York, New York, NY, for
Respondent-Appellee.
2
MENASHI, Circuit Judge:
On August 7, 1998, Petitioner-Appellant Mohamed Rashed
Daoud Al‑’Owhali and a team of al Qaeda operatives conducted
simultaneous bombings of the American embassies in Nairobi,
Kenya, and Dar es Salaam, Tanzania. The attacks killed 224 people—
including twelve Americans—and wounded thousands. Al‑’Owhali
was arrested, transported to the United States, and indicted. In 2001,
a federal jury convicted Al-’Owhali of 266 counts for his role in the
bombings. The district court subsequently sentenced Al‑’Owhali to
264 concurrent life terms of imprisonment, to be followed by a
consecutive 10-year term of imprisonment, in turn to be followed by
a consecutive 30-year term of imprisonment. He has since been
serving his 264 life sentences.
In this appeal, Al‑’Owhali challenges only one of his 266
convictions. Al‑’Owhali seeks to vacate his conviction for using an
explosive device during a crime of violence in violation of 18 U.S.C.
§ 924(c), which yielded the 30-year sentence that is to follow his other
terms of imprisonment. He asserts that the conviction’s predicate
offense no longer qualifies as a “crime of violence” following the
decision of the Supreme Court in United States v. Davis, 139 S. Ct. 2319
(2019). We need not and do not reach the merits of this challenge.
We hold that a court may exercise its discretion under the
concurrent sentence doctrine to decline to review the merits of a claim
on collateral review when the challenged conviction’s sentence runs
consecutively to one or more unchallenged life sentences. We exercise
such discretion here and decline to review Al‑’Owhali’s claim for two
reasons. First, Al‑’Owhali’s claim will not afford him any actual
3
sentencing relief. Because he does not challenge his 264 life sentences,
even a complete vacatur of his § 924(c) conviction will not reduce the
time he serves in prison. Second, leaving the § 924(c) conviction
unreviewed will not yield any adverse collateral consequences.
Accordingly, we affirm the judgment of the district court
without prejudice to Al‑’Owhali renewing his claim in the event that
he is later authorized to challenge the validity of his 264 life sentences.
BACKGROUND
I
Al‑’Owhali joined al Qaeda in 1996 and volunteered to
participate in a mission. He was tasked with bombing the American
embassy in Nairobi, Kenya. Al‑’Owhali filmed a video claiming
responsibility for the bombing in advance, and he then traveled to
Nairobi to carry it out. Between his arrival on August 2, 1998, and the
attack on August 7, 1998, Al-’Owhali and his co-conspirators finalized
the logistics of the attack, surveilled the embassy, and oversaw the
wiring of the bomb.
On August 7, 1998, Al‑’Owhali was the sole passenger in the
truck that delivered the bomb to the embassy. As the truck
approached the embassy, Al‑’Owhali exited and threw a stun grenade
at the embassy guards to clear a path for the truck. After the bomb
was in place, Al‑’Owhali fled and the bomb detonated.1 The resulting
explosion destroyed part of the embassy and an adjacent building,
killing 213 and wounding thousands. Shortly thereafter, American
1The bomb detonated nearly simultaneously with the bomb in the attack
on the American embassy in Tanzania, which killed eleven people.
4
and Kenyan authorities arrested Al‑’Owhali and transported him to
the United States.
On May 29, 2001, a jury in the Southern District of New York
convicted Al‑’Owhali of 266 counts for his role in the bombings,
including 213 counts of murder during an attack on a federal facility
in violation of 18 U.S.C. § 930(c), one count of destroying federal
property with explosives resulting in death in violation of 18 U.S.C.
§ 844(f)(3), and one count of using an explosive device during and in
relation to a crime of violence in violation of 18 U.S.C. § 924(c). 2 The
§ 844(f)(3) conviction served as the predicate crime of violence for the
§ 924(c) conviction.
Because the jury did not unanimously conclude that
Al‑’Owhali’s capital convictions warranted the death penalty, the
district court (Sand, J.) sentenced Al‑’Owhali to the terms of
imprisonment mandated by statute. Al‑’Owhali received 264
concurrent life sentences, to be followed by a consecutive 10-year
term of imprisonment, which in turn would be followed by a
consecutive 30-year term of imprisonment for his § 924(c) conviction.
2 Al‑’Owhali was also convicted of conspiracy to murder U.S. nationals,
officers, and employees in violation of 18 U.S.C. §§ 1114, 1116-17, and
2332(b); conspiracy to use weapons of mass destruction against U.S.
nationals in violation of 18 U.S.C. §§ 2332a(a)(1) and (a)(3); conspiracy to
damage or destroy U.S. property in violation of 18 U.S.C. § 844(n); murder
and attempted murder of U.S. employees and internationally protected
persons in violation of 18 U.S.C. §§ 1111, 1114, and 1116; use and attempted
use of weapons of mass destruction against U.S. nationals in violation of 18
U.S.C. §§ 2332a(a)(1) and (a)(3); and use of an explosive device in the
commission of a felony in violation of 18 U.S.C. § 844(h)(1)-(2).
5
We affirmed Al‑’Owhali’s convictions and sentences on direct
appeal. 3
II
This appeal arises from the interaction of Al‑’Owhali’s § 924(c)
conviction and the decision in United States v. Davis, 139 S. Ct. 2319
(2019). 4 In Davis, the Supreme Court held that the residual clause of
18 U.S.C. § 924(c)(3)(B)—which defined “crime of violence” to include
any felony “that by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the
course of committing the offense”—was unconstitutionally vague.
139 S. Ct. at 2336. Davis followed two other decisions in which the
Court held similar language to be impermissibly vague. See Sessions
v. Dimaya, 138 S. Ct. 1204, 1210-11 (2018) (addressing the federal
criminal code’s definition of “crime of violence” in 18 U.S.C. § 16(b));
Johnson v. United States, 576 U.S. 591, 593-94 (2015) (addressing the
3 See In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93 (2d Cir.
2008); In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157 (2d
Cir. 2008) (denying Fourth Amendment challenges); In re Terrorist Bombings
of U.S. Embassies in E. Afr., 552 F.3d 177 (2d Cir. 2008) (denying Fifth
Amendment challenges). Al‑’Owhali did not challenge his § 924(c)
conviction on direct appeal.
4 Al‑’Owhali previously filed a different 28 U.S.C. § 2255 motion but
voluntarily withdrew it before the district court issued a decision on its
merits. See Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence of Petitioner-Appellant at 2-3, Al‑’Owhali v. United States, No. 20-
CV-0832 (S.D.N.Y. Jan. 29, 2020), ECF No. 1.
6
Armed Career Criminal Act’s definition of “violent felony” in 18
U.S.C. § 924(e)(2)(B)(ii)). 5
Following Davis, Al‑’Owhali filed a motion pursuant to
28 U.S.C. § 2255 to vacate his § 924(c) conviction on the ground that
the predicate § 844(f) conviction for using an explosive device to
destroy federal property no longer qualifies as a “crime of violence”
under the statute. Al‑’Owhali argued that vacatur of the § 924(c)
conviction would warrant vacatur of and de novo resentencing on his
265 other convictions.
The district court (Kaplan, J.) denied Al‑’Owhali’s § 2255
motion and declined to issue a certificate of appealability. See
Al‑’Owhali v. United States, No. 20-CV-0832, 2020 WL 4194635, at *2
(S.D.N.Y. July 21, 2020). The district court held that Al‑’Owhali had
cause to bring his procedurally defaulted claim because he was
convicted “long before Davis was decided” and an earlier challenge
based on § 924(c)’s definition of “crime of violence” would have
“failed at the time under controlling Second Circuit precedent.” Id. at
*1 & n.2 (citing United States v. Barrett, 903 F.3d 166, 175 (2d Cir. 2018)).
However, the district court held that Al‑’Owhali failed to show “the
actual prejudice required to overcome his procedural default.” Id. at
*1. A panel of this court granted Al‑’Owhali’s motion for a certificate
of appealability.
5 The Court has explicitly held that Johnson announced a new substantive
rule of constitutional law that applies retroactively on collateral review. See
Welch v. United States, 578 U.S. 120, 135 (2016). It has not done so for Dimaya
or Davis.
7
DISCUSSION
We review de novo a district court’s denial of a motion under
§ 2255 to vacate, set aside, or correct a sentence. Kassir v. United States,
3 F.4th 556, 561 (2d Cir. 2021). A § 2255 motion challenges the
prisoner’s being in custody, and relief may be afforded only when the
prisoner claims “the right to be released.” 28 U.S.C. § 2255(a). 6 If the
challenged sentence “was not authorized by law,” we will correct it
“as may appear appropriate.” Id. § 2255(b).
The government argues that we should decline to review
Al‑’Owhali’s claim pursuant to the concurrent sentence doctrine. 7
We therefore consider whether a court has discretion under that
doctrine to decline to review a claim on collateral review when the
challenged conviction’s sentence runs consecutively, not
concurrently, to one or more unchallenged life sentences. We
conclude that the concurrent sentence doctrine allows for such
discretion, and we exercise that discretion to decline to review
Al‑’Owhali’s claim here.
6 “[T]he use of [‘custody’] in federal habeas statutes is ‘designed to preserve
the writ … as a remedy for severe restraints on individual liberty.’” Kassir,
3 F.4th at 566 (emphasis omitted) (quoting United States v. Ross, 801 F.3d
374, 379 (3d Cir. 2015)); see also Kaminski v. United States, 339 F.3d 84, 91 (2d
Cir. 2003). Challenges to noncustodial punishments do not qualify for such
collateral review. See United States v. Rutigliano, 887 F.3d 98, 105 (2d Cir.
2018); United States v. Thiele, 314 F.3d 399, 401-02 (9th Cir. 2002).
7 The government also argues that (1) Al‑’Owhali procedurally defaulted
his challenge to the § 924(c) conviction, and (2) § 844(f) qualifies as a “crime
of violence” under the elements clause of § 924(c)(3)(A) and therefore may
serve as a predicate offense even after Davis. We need not reach these issues
in this appeal.
8
I
Under the concurrent sentence doctrine, a court may decline to
consider a challenge to a “conviction for which an appellant’s
sentence runs concurrently with that for another, valid conviction.”
United States v. Vargas, 615 F.2d 952, 956 (2d Cir. 1980); see also Duka v.
United States, 27 F.4th 189, 194 (3d Cir. 2022) (“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.”) (internal quotation marks and citation omitted). The
doctrine “authorizes a court to leave the validity of one concurrent
sentence unreviewed when another is valid and carries the same or
greater duration of punishment.” United States v. Charles, 932 F.3d 153,
155 (4th Cir. 2019).
The doctrine is a “rule of judicial convenience,” Kassir, 3 F.4th
at 561 (quoting Benton v. Maryland, 395 U.S. 784, 791 (1969)), that
conserves judicial resources when, “regardless of the outcome, the
prisoner will remain in jail for the same length of time,” Benton, 395
U.S. at 799 (White, J., concurring). As a “species” of “harmless-error
analysis,” it allows a court to “avoid unnecessary adjudication of
issues and unnecessary pronouncements of law” by reserving
“judgment only for issues that, once resolved, have some practical
effect.” Kassir, 3 F.4th at 564-65.
The doctrine does not provide unlimited discretion. In Ray v.
United States, the Supreme Court held that three convictions were not
concurrent because each imposed a separate monetary penalty; given
that each conviction affected the petitioner’s total “liability to pay,” a
9
court could not apply the doctrine to decline to review one of those
convictions. 481 U.S. 736, 737 (1987) (per curiam). Because “all federal
convictions carry a mandatory special assessment, Ray is understood
to have ‘abolished the concurrent sentence doctrine for direct review
of federal convictions.’” Dhinsa v. Krueger, 917 F.3d 70, 76 n.4 (2d Cir.
2019) (internal citation and alteration omitted) (quoting 7 Wayne R.
LaFave et al., Crim. Proc. § 27.5(b) (4th ed. 2015)). We nevertheless
continue to apply the doctrine “in direct appeals where a defendant
challenges only the length of one concurrent sentence, rather than the
legality of a conviction underlying that sentence,” consistent with
“the more general principle that a sentencing error is not prejudicial
where, in the absence of the error, the defendant would have received
the same aggregate term of imprisonment on multiple counts.” Kassir,
3 F.4th at 562-63.
We recently held that the concurrent sentence doctrine remains
available in a collateral challenge to a conviction or sentence under
§ 2255. Id. at 564, 566. Other circuits have reached similar conclusions.
See Duka, 27 F.4th at 195-96 (challenging a conviction); Oslund v.
United States, 944 F.3d 743, 746 (8th Cir. 2019) (challenging a sentence);
Charles, 932 F.3d at 162 (challenging a sentence); Ryan v. United States,
688 F.3d 845, 848-49 (7th Cir. 2012) (challenging a conviction). A
collateral attack under § 2255 “presents a wholly different context in
which a court may grant relief” than direct appeal. Kassir, 3 F.4th at
566. While “[a] direct appeal allows for a frontal attack on a
conviction, a sentence, or both,” id. at 565, a collateral attack is limited
to a “claimed right of relief from ‘custody,’” Duka, 27 F.4th at 195.
Relief from “fines, special assessment fees, restitution, and other
noncustodial punishments” might result from “a defendant’s
10
successful collateral attack on a conviction” but “cannot themselves
serve as bases for collateral relief.” Kassir, 3 F.4th at 566.
II
In light of our precedent, we hold that the concurrent sentence
doctrine applies to a collateral challenge to a conviction for which the
sentence runs consecutively to one or more unchallenged life
sentences. We have discretion to apply the doctrine when, as in this
case, (1) the collateral challenge will have no effect on the time the
prisoner must remain in custody and (2) the unreviewed conviction
will not yield additional adverse collateral consequences.
A
When a prisoner challenges a sentence to run consecutively to
an unchallenged life sentence, even a complete vacatur of the
challenged sentence will not “reduce the time he is required to serve”
in prison. Id. at 561 (quoting Oslund, 944 F.3d at 746). Whether the
challenged sentence runs consecutively or concurrently to the
unchallenged life sentence “is a distinction without a difference.”
Duka, 27 F.4th at 194. The “same practical concern underlying the
concurrent sentence doctrine is present” in both circumstances
“despite any semantic distinction in the posture of the[] sentences.”
Id. at 195. For that reason, applying the concurrent sentence doctrine
in cases such as this one equally allows a court to “reserve our
judgment only for issues that, once resolved, have some practical
effect.” Kassir, 3 F.4th at 565.
Al‑’Owhali is currently serving 264 concurrent life sentences,
all of which we affirmed on direct appeal and none of which he
challenges here. Al‑’Owhali challenges only his § 924(c) conviction,
11
which carries a 30-year sentence that runs consecutively to all of his
264 life sentences and another 10-year consecutive sentence. Vacatur
of his § 924(c) conviction will have no effect on the time he must serve
in prison. Therefore, entertaining Al‑’Owhali’s challenge would
“result in the expenditure of the court and parties’ time and resources,
with no possibility for any cognizable change for” Al‑’Owhali “even
if [his] challenge [were] successful.” Duka, 27 F.4th at 195. The costs
would be significant, especially in light of Al‑’Owhali’s contention
that vacatur of his § 924(c) conviction should occasion a resentencing
on all of his other counts. Two decades removed from the original
sentencing, “the social costs of retrial or resentencing are significant,
and the attendant difficulties are acute.” Id. (alteration omitted)
(quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)).
B
Application of the concurrent sentence doctrine—that is,
leaving the § 924(c) conviction in place—will not occasion adverse
collateral consequences for Al‑’Owhali. “In this context, it has been
said that the court must ‘foresee with reasonable certainty that the
defendant will suffer no adverse collateral consequences’ from the
court’s decision to leave his conviction and sentence unreviewed.”
Kassir, 3 F.4th at 561 (alteration omitted) (quoting Charles, 932 F.3d at
155). At the same time, the court must “eliminate[] from the forward-
looking analysis unrealistic speculation” because “if ‘highly
speculative adverse collateral consequences’ were to bar courts from
applying the concurrent sentence doctrine, there would be nothing
left to ‘this useful rule.’” Charles, 932 F.3d at 160 (quoting Eason v.
United States, 912 F.3d 1122, 1124 (8th Cir. 2019)).
12
In United States v. Vargas, we proposed five factors to consider
when inquiring into “the collateral consequences of affirming the
conviction on the basis of the [concurrent sentence] doctrine, and
whether they are of sufficient immediacy and impact to warrant its
inapplicability.” 615 F.2d at 959. The Vargas factors examine the effect
of an unreviewed conviction on the “petitioner’s eligibility for parole,
the future application of recidivist statutes for a future offense by the
petitioner, the petitioner’s credibility in future trials, the possibility of
pardon, and societal stigma of a conviction.” Kassir, 3 F.4th at 568
(citing Vargas, 615 F.2d at 959-60). The presence of any factor is
sufficient to justify review. See Vargas, 615 F.2d at 959-60.
In this case, there is “no meaningful possibility” that the
unreviewed conviction will subject Al‑’Owhali to a “substantial risk
of adverse collateral consequences.” Kassir, 3 F.4th at 568. First, the
unreviewed conviction will have no effect on Al‑’Owhali’s future
parole eligibility because his unchallenged life sentences are all
without parole. See United States v. Delgado, 971 F.3d 144, 159 (2d Cir.
2020) (“Since there is no parole in the federal system, [the] sentence is
effectively the same as a life-without-parole sentence in state court
systems.”). Second, it is unlikely that Al‑’Owhali will be subject to a
“recidivist statute for a future offense,” such that the unreviewed
conviction could result in an “increased sentence,” because
Al‑’Owhali is already in prison for life. Kassir, 3 F.4th at 568 (quoting
Rutledge v. United States, 517 U.S. 292, 302 (1996)). Third, the
unreviewed conviction is unlikely to be used to impeach his character
at a future trial or affect his chances for a potential pardon because he
remains convicted on 265 other counts for his role in the Nairobi
bombing. Fourth, the unreviewed conviction is unlikely to subject
13
Al‑’Owhali to a “societal stigma,” “especially in comparison to the
stigma already carried by his [unchallenged] conviction[s]” for
engaging in terrorism that killed over 200 people. Id.
C
Other circuits have applied the concurrent sentence doctrine in
similar circumstances. Most recently, the Third Circuit affirmed a
district court’s reliance on the concurrent sentence doctrine to decline
to consider a § 2255 challenge to a § 924(c) conviction that ran
consecutively to unchallenged life sentences. See Duka, 27 F.4th at 190-
91, 196 (“[T]he 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.”). Similarly, the Eighth Circuit affirmed a district court’s
exercise of discretion to decline to review the validity of a life sentence
that ran before a different and consecutive life sentence. Oslund, 944
F.3d at 748. The Eighth Circuit “agree[d] with the district court’s
determination that [the prisoner’s] consecutive life sentences are the
functional equivalent of concurrent life sentences,” id. at 748 n.3, and
that “resentencing on [one life sentence] would not reduce the time
[the prisoner] is required to serve because it would not affect … his
[other] life sentence,” id. at 746.
The Seventh Circuit has effectively agreed with the approach of
these circuits. In Ruiz v. United States, the government urged the court
to apply the doctrine under similar circumstances. 990 F.3d 1025, 1029
14
(7th Cir. 2021). 8 The court considered the doctrine “by analogy,”
concluding that “the same considerations of futility, speculation, and
preservation of judicial resources” applied. Id. at 1033. The Seventh
Circuit said that while it was declining to engage in review that
“would lead to no practical or concrete sentencing relief,” it was “not
adopting a ‘consecutive sentence doctrine’ analogous to the
concurrent sentence doctrine” because challenges to consecutive
sentences ordinarily could result in such relief. Id. 9
III
We conclude as we did in Kassir by acknowledging that, while
“speculative, unlikely, and remote,” it is not impossible that someday
“a new rule of constitutional law or newly discovered evidence”
might invalidate Al‑’Owhali’s life sentences and thereby render
consequential his challenge to his 30-year consecutive sentence.
3 F.4th at 569. Given that possibility, we affirm the district court’s
8 A federal jury convicted Jesus Ruiz of, inter alia, three counts of using a
firearm during a crime of violence in violation of § 924(c). Ruiz, 990 F.3d at
1028. Ruiz received seven life sentences and one 10-year sentence to run
concurrently, and an additional 45-year sentence on the § 924(c) convictions
to run consecutively. Id. Ruiz filed a § 2255 motion asserting that § 924(c)’s
residual clause was unconstitutionally vague and that the predicate
offenses for the § 924(c) convictions were not “crimes of violence.” Id.
9 The Seventh Circuit reasoned that, “in most circumstances involving
consecutive sentences, a prisoner would suffer tangible prejudice if an
invalid conviction remained on his record because he would be required to
serve a longer actual prison term.” Ruiz, 990 F.3d at 1033-34. True enough,
but this concern does not apply when life sentences remain unchallenged
and “there is no substantial possibility that the unreviewed sentence will
adversely affect” the prisoner. Charles, 932 F.3d at 155 (emphasis omitted).
15
judgment without prejudice to Al‑’Owhali renewing his Davis claim
“if and when” he can bring “a timely and colorable challenge to … his
[264] concurrent life sentences.” Id. To be clear, Al‑’Owhali “has
already unsuccessfully challenged his other convictions, and we do
not mean to suggest that such a challenge can be mounted,” but “in
the event that something in the future changes the validity of [his] life
sentences,” a court may consider his Davis claim at that time. Id.
(noting that in such a future challenge a court would evaluate “the
claim’s timeliness by reference to when he raised it in the present
action” and allow the government “to raise any other defenses that it
might wish to advance”).
CONCLUSION
The judgment of the district court is affirmed without prejudice
to Al‑’Owhali renewing the claim if he is authorized to challenge the
validity of his life sentences in the future.
16