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Jailhouse Lawyer Annoys Federal Courts



How to prevent insurance fraud

A prisoner seeking relief from a long sentence failed after several efforts as a pro se applicant. IN Ali Darwich v. Warden Lewisburg USP; Attorney General USANo. 22-2280, United States Court of Appeals, Third Circuit (October 14, 2022), Ali Darwich, a federal prisoner currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania (“USP Lewisburg”), appealed pro se from the district court order denying his petition for a writ of habeas corpus pursuant to 28 USC § 2241.

FACTS

In 2013, a jury in the Eastern District of Michigan convicted Darwich of thirty-three counts related to arson and insurance fraud, including seven counts of using fire to commit fraud in violation of 18 USC § 844(h)(1). He was sentenced to a total of 1647 months or 137 years in prison.

He tried several times to avoid the sentence only to have it upheld by the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court denied Darwich’s request for a writ of habeas corpus in USA vs. Darwich, 574 Fed.Appx. 582 (6th c. 2014), cert. denied, 574 US 1200 (2015). Darwich then moved to vacate, set aside, or correct his sentence pursuant to 28 USC § 2255. The District Court denied the motion, in USA vs. Darwich, No. 2:10-CR-20705, 2016 WL 146662 (ED Mich. Jan. 13, 2016), and the Sixth Circuit denied Darwich’s request for a certificate of appealability, in Darwich v. United States, No. 16-1151 (6th Cir. Aug. 5, 2016) (order). Darwich continued to file numerous unsuccessful motions for leave to file second or consecutive § 2255 motions.

In 2022, Darwich filed a petition for § 2241 relief, which the district court interpreted as raising three claims: (1) that Darwich’s conviction and sentence are unlawful under United States v. Davis, 588 U.S.__, 139 S.Ct. 2319 (2019), Bailey v. United States, 516 US 137 (1995), and Deal v. United States, 508 US 129 (1993); (2) that he was subjected to selective prosecution because of his race or ethnicity; and (3) that the sentencing court erred in imposing consecutive sentences. The district court denied the petition, concluding that Darwich failed to show that § 2255 was an “inadequate or ineffective” remedy such that his claim could be considered under § 224.

ANALYSIS

Motions under 28 USC § 2255 are the presumptive means for federal prisoners to challenge their convictions or sentences. A § 2241 habeas corpus petition “shall not be entertained” unless a § 2255 motion would be “insufficient or ineffective to test the legality of [petitioner’s] detention.” A § 2255 motion is insufficient or ineffective only if the petitioner shows that some limitation in scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and determination of his claim of unlawful detention.

The Third Circuit agreed with the district court’s decision that Darwich failed to make the showing necessary to satisfy the safety valve exception.

First: Darwich argued that his conviction no longer qualifies as a violent crime. Darwich was convicted under 18 USC § 844(h)(1).

Second: The trial court’s decision that it lacked jurisdiction to consider Darwich’s selective prosecution and subsequent penalty claims.

Third: Darwich has had numerous prior opportunities to present these claims and the fact that his prior challenges have failed and/or that a new one would be barred as successive does not render § 2255 an inadequate remedy. Even colorable claims of actual innocence where a petitioner is incarcerated for conduct later rendered noncriminal by order of the Supreme Court may satisfy the requirement of § 2255(e) when the petitioner had no prior opportunity to raise the claims but are inapplicable, therefore , to Darwich.

The Third Circuit affirmed the district court’s judgment.

This case establishes without a doubt that people who commit insurance fraud have the gall to do so and deserve their punishment. Arson and arson for profit is a crime of violence that can cause injury or death to firefighters or innocent bystanders or tenants. The sentence was well deserved and the introduction of several appeals and motions which are peculiarly deserving of sanctions but would not do much to add to a 137 year sentence. The only sanction that will work is to ignore further moves from Darwich.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims management, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims attorney and more than 54 years in the insurance industry. He can be reached at http://www.zalma.com and zalma@zalma.com. Subscribe and receive videos limited to Excellence in Claims Handling subscribers at locals.com https://zalmaoninsurance.locals.com/subscribe.Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.

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About Barry Zalma

An insurance coverage and claims management author, consultant and expert witness with more than 48 years of practical and courtroom experience.




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