Muse v. Daniels, No. 15-2646 (7th Cir. 2016)

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Muse, with others, boarded the MV Maersk Alabama in 2009, off the Somalian coast, taking its captain hostage. Muse initially stated that he was 16 at the time. Before a hearing to determine his age, Muse told an agent that he was 18. At the hearing, Muse refused to testify. A New York Magistrate concluded that Muse was at least 18 when the crime occurred. Prosecuted as an adult, Muse pleaded guilty to piracy, 18 U.S.C. 2280, and was sentenced to 405 months’ imprisonment. The plea agreement contains a promise “not to seek to withdraw his guilty plea or file a direct appeal or any kind of collateral attack" based on his age at the time of the crime or the time of the plea. Nonetheless, Muse filed a 28 U.S.C. 2255 motion, arguing that a magistrate lacked authority to decide whether he was an adult and that his lawyer furnished ineffective assistance by not pursuing that question. Chief District Judge Preska denied that motion; the Second Circuit declined to issue a certificate of appealability. Turning to the Southern District of Indiana, where he is imprisoned, Muse unsuccessfully sought habeas relief under 28 U.S.C. 2241. The Seventh Circuit affirmed, agreeing that Muse has not identified any inadequacy in section 2255. The reason he could not contest the magistrate’s decision has nothing to do with section 2255, but was the consequence of his waiver.

This opinion or order relates to an opinion or order originally issued on February 24, 2016.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15- 2646 ABDUWALI ABDUKHADIR MUSE, Petitioner- Appellant, v. CHARLES A. DANIELS, Warden, FCI Terre Haute, Respondent- Appellee. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:15- cv- 00213- JMS- DKL — Jane E. Magnus- Stinson, Judge. ____________________ SUBMITTED FEBRUARY 22, 2016 — DECIDED FEBRUARY 24, 2016* ____________________ Before EASTERBROOK, KANNE, and SYKES, Circuit Judges. EASTERBROOK, Circuit Judge. Abduwali Muse pleaded guilty to piracy, 18 U.S.C. §2280, among other crimes, for his role in boarding the MV Maersk Alabama in 2009 in interna- tional waters off the coast of Somalia and taking its captain hostage. * The appeal was decided by non- precedential order on February 24, 2016. The court reissued the decision as an opinion on March 4, 2016. 2 No. 15- 2646 Muse initially told federal agents that he was 16 at the time of his capture, which created a potential for prosecution under the special rules applicable to juveniles. See 18 U.S.C. §§ 5031–42. The day before a hearing set to determine his age, Muse told an FBI agent that he was between 18 and 19. At the hearing Muse refused to testify. Magistrate Judge Peck, of the Southern District of New York, concluded that Muse was at least 18 when the crime occurred, which led to his prosecution as an adult. He pleaded guilty and was sen- tenced to 405 months’ imprisonment. The plea agreement contains a clause promising “not to seek to withdraw his guilty plea or file a direct appeal or any kind of collateral at- tack challenging his guilty plea or conviction based on his age either at the time of the charged conduct or at the time of the guilty plea.” Notwithstanding the waiver, Muse filed a proceeding under 28 U.S.C. §2255 asking the Southern District of New York to set aside his conviction on the grounds that a magis- trate judge lacked authority to decide whether he was an adult in 2009 and that his lawyer furnished ineffective assis- tance by not pursuing that question vigorously. Chief Dis- trict Judge Preska denied that motion, relying on the waiver in the plea agreement. Muse appealed, but the Second Cir- cuit declined to issue a certificate of appealability. Turning to the Southern District of Indiana, where he is imprisoned, Muse filed a petition for a writ of habeas corpus under 28 U.S.C. §2241. Again he lost, this time because the district court concluded that §2255(e) applies. Section 2255(e) provides: “An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not No. 15- 2646 3 be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffec- tive to test the legality of his detention.” Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (en banc), discusses when §2255 as a whole is “inadequate or ineffective to test the legality of” federal detention. The district court properly concluded that Muse has not identified any deficiency or inadequacy in §2255. The reason he could not contest the magistrate judge’s decision has nothing to do with §2255. It is, instead, the con- sequence of his own decision to waive any entitlement to raise the age issue on collateral attack. That waiver would apply equally in a proceeding under §2241, had not §2255(e) taken precedence, for §2241 is a form of collateral attack. Muse’s brief in this court ignores his waiver and §2255(e) alike. Instead he presents an argument about the extent to which 28 U.S.C. §636(b)(1)(A) permits magistrate judges to resolve contests about criminal defendants’ ages. The brief thus gives us no reason to question the district court’s deci- sion. AFFIRMED

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