United States District Court, E.D. Virginia, Norfolk Division
REBECCA BEACH SMITH, CHIEF JUDGE.
matter comes before the court on the Petitioner's
"Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence" ("Motion"), and
accompanying memorandum, filed pro se on October 7,
2016. ECF Nos. 982, 983. On November 22, 2016,
the court ordered the United States to respond to the
Petitioner's Motion. ECF No. 985. The United States filed
its Response on March 24, 2017. ECF No. 1004. After receiving
an extension, the Petitioner filed his Reply on May 8,
2017. ECF No. 1012. The matter is now ripe for
early February 2011, a group of nineteen pirates left Somalia
prepared to hijack a ship at sea. They were aboard a captured
Yemeni boat, operated by four Yemeni hostages, and were armed
with automatic firearms and a rocket-propelled grenade
launcher. The Petitioner was among this group; he provided a
motor to operate the small boat that would be used to launch
fast-moving attacks on target ships. A list was drawn up
naming each of the nineteen pirates involved in the mission
so that it would be known how the proceeds would be divided
among them. The Petitioner's name was on this list.
February 18, 2011, the pirates spotted the Quest, a
sailboat flying a United States flag. The Quest was
owned by Scott and Jean Adam. The Adams and their friends,
Robert Riggle and Phyllis Macay, all United States citizens,
were traveling from India to Oman. On the day the
Quest was targeted, the pirates had been at sea
about nine days and had traveled over nine hundred miles. Six
pirates quickly jumped into the small boat, armed with
firearms and the rocked-propelled grenade launcher, and
headed towards the Quest. The Petitioner was among
this group. As they approached, the Petitioner fired his
AK-47 into the air.
board, the pirates took the Americans hostage, cut the
communications line on the ship and moved their supplies from
the Yemeni boat to the Quest. The pirates then
released their four Yemeni captives, allowing them to sail
off in the Yemeni boat. The pirates, setting a course for
Somalia, took stock of the Quest. Including the
Petitioner, many of them put on clothing belonging to the
four American hostages. The pirates used the Americans'
cellphones to take photographs and videos of each other
wearing the Americans' clothing, holding guns, smiling,
and so forth. Meanwhile, the hostages were kept under armed
guard in the horseshoe-shaped bench area around the helm of
the Quest. The Petitioner was one of the pirates
assigned guard duty.
the pirates could travel much farther, however, they were
intercepted by the United States Navy. On establishing radio
communication with the pirates, the Navy explained to the
pirates that they would not be allowed to reach Somalia's
territorial waters with the hostages and that any negotiation
for the hostages' release would need to occur in
international waters. The pirates resisted, and some of them
threated to kill the hostages if they were not allowed to
reach Somalia. The Petitioner was a member of this group.
February 22, 2011, when the Quest was about thirty
to forty nautical miles from Somalia's coast, the Navy
began maneuvering to block the Quest's course to
Somalia. More threats were made against the hostages'
lives, and one pirate fired a rocket-propelled grenade at one
of the Navy ships. Shortly thereafter, the Petitioner and two
of his fellow pirates, Ahmed Muse Salad ("Salad")
and Shani Nurani Shiekh Abrar ("Abrar"), shot and
killed the four hostages. The Navy immediately headed for the
Quest, and boarded and secured it. During this
encounter, some of the pirates were killed; the remainder
en route to the United States, the pirates were given
Miranda warnings and interviewed by the Federal
Bureau of Investigation ("FBI"). After arrival in
the United States, the pirates were arrested and a grand jury
returned a three-count indictment against them. Eleven pled
guilty. The Petitioner, Salad, and Abrar, who had all not
pled guilty, were then charged in a superseding indictment
with twenty-six criminal counts:
• Count One: Conspiracy to Commit Hostage
Taking Resulting in Death, in violation of 18 U.S.C.
§§ 1203(a), 3238, and 2.
• Counts Two through Five: Hostage Taking
Resulting in Death, in violation of 18 U.S.C. §§
1203(a), 3238, and 2.
• Count Six: Conspiracy to Commit Kidnapping,
in violation of 18 U.S.C. §§ 1201(c) and 3238.
• Counts Seven through Ten: Kidnapping
Resulting in Death, in violation of 18 U.S.C. §§
1201(a)(2), 3238, and 2.
• Count Eleven: Conspiracy to Commit Violence
Against Maritime Navigation Resulting in Death, in violation
of 18 U.S.C. §§ 2280(a)(1)(H), 2280(b)(1), and
• Counts Twelve through Fifteen: Violence
Against Maritime Navigation Resulting in Death, in violation
of 18 U.S.C. §§ 2280(a)(1)(G), 2280(b)(1), 3238,
• Counts Sixteen through Nineteen: Murder
Within the Special Maritime and Territorial Jurisdiction of
the United States, in violation of 18 U.S.C. §§
1111, 3238, and 2.
• Count Twenty: Piracy Under the Law of
Nations, in violation of 18 U.S.C. §§ 1651, 3238,
• Count Twenty-One: Use, Carry, and Brandish a
Firearm During a Crime of Violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(ii) and (B)(ii), 3238, and 2.
• Counts Twenty-Two through Twenty-Five: Use,
Carry, and Discharge of a Firearm During a Crime of Violence
Causing Death, in violation of 18 U.S.C. §§ 924 (c)
(1) (A) (iii) and (B) (ii), 924(j), 3238, and 2.
• Count Twenty-Six: Use, Carry, and Discharge
of a Firearm During a Crime of Violence, in violation of 18
U.S.C. §§ 924(c) (1) (A) (iii) and (B) (ii), 3238,
See Superseding Indictment, ECF No. 237.
8, 2013, after a month-long trial, the jury returned a
verdict finding the Petitioner, Abrar, and Salad guilty of
all twenty-six counts. ECF No. 751. On November 14, 2013, the
court sentenced the Petitioner to a term of life, plus
eighteen consecutive life terms, and thirty consecutive
years. Judgment, ECF No. 889. The court also imposed
consecutive life sentences on Counts Seven through Ten;
however, pursuant to the court's Memorandum Order of
November 27, 2012, it vacated as duplicative those
convictions and sentences. Id.; see United
States v. Salad, 907 F.Supp.2d 743, 750 (E.D. Va. 2012)
(denying as premature the "Defendants' Joint Motion
to Dismiss Counts 7, 8, 9, and 10, " but agreeing that,
should the defendant(s) be found guilty of these and Counts
Two through Five, these convictions would "impermissibly
overlap" in violation of the Double Jeopardy Clause).
appeal, the Petitioner challenged his convictions on the sole
basis "that the district court lacked jurisdiction over
the charges of murder (Counts 16, 17, 18, and 19) and
concomitant use of a firearm (Counts 22, 23, 24, and 25)
because the underlying actions occurred within Somalia's
territorial waters, not on the high seas." United
States v. Beyle, 782 F.3d 159, 165 (4th Cir.
2015). On April 3, 2015, the United States Court
of Appeals for the Fourth Circuit determined that "the
site of the murders, thirty to forty nautical miles from the
Somali coast, lay on the high seas and thus beyond the
territorial sea of any nation, " id. at 162,
and affirmed this court's judgment. Id. The
Petitioner filed a petition for a writ of certiorari with the
United States Supreme Court on July 1, 2015, and it was
denied on October 5, 2015. Beyle v. United States,
136 S.Ct. 179 (2015) (mem.). The Petitioner subsequently
filed the instant Motion.
prisoner may challenge a sentence imposed by a federal court,
if (1) the sentence violates the Constitution or laws of the
United States; (2) the sentencing court lacked jurisdiction
to impose the sentence; (3) the sentence exceeds the
statutory maximum; or (4) the sentence "is otherwise
subject to collateral attack." 28 U.S.C. § 2255(a).
A sentence is "otherwise subject to collateral attack,
" if a petitioner shows that the proceedings suffered
from "a fundamental defect which inherently results in a
complete miscarriage of justice." United States v.
Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v.
United States, 368 U.S. 424, 428 (1962) (internal
quotation marks omitted)). A petitioner bears the burden of
proving one of those grounds by a preponderance of the
evidence. See Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958). If he satisfies that burden, the court
may vacate, set aside, or correct the sentence. 28 U.S.C.
§ 2255(b). However, if the motion, when viewed against
the record, shows that the petitioner is entitled to no
relief, the court may summarily deny the motion. Raines
v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
"once a defendant has waived or exhausted his appeals,
the court is 'entitled to presume he stands fairly and
finally convicted.'" Michel v. United
States, 849 F.Supp.2d 649, 653 (W.D. Va. 2012) (quoting
United States v. Frady, 456 U.S. 152, 164 (1982)).
Therefore, under the doctrine of procedural default, claims
asserting trial errors-of fact or law-
that could have been, but were not raised on direct appeal
are barred from review under § 2255, unless the
defendant shows [(1)] cause for the default and
actual prejudice resulting from such errors or [(2)]
demonstrates that a miscarriage of justice would result from
the refusal of the court to entertain the collateral attack.
United States v. Shelton, No. 1:O4cr45, 2009 WL
90119, at *1 (W.D. Va. Jan. 14, 2009) (emphasis added)
(citing United States v. Mikalajunas, 186
F.3d 490, 492-93 (4th Cir. 1999)); Frady, 456 U.S.
petitioner alleges cause and prejudice to overcome the
procedural default bar, both must be present, and the absence
of either is sufficient to deny the petitioner relief.
See Frady, 456 U.S. at 168 ("[W]e find it
unnecessary to determine whether [the petitioner] has shown
cause, because we are confident he suffered no actual
prejudice . . . ."). Cause "must turn on something
external to the defense, such as the novelty of the claim or
a denial of effective assistance of counsel."
Mikalajunas, 186 F.3d at 493. Prejudice cannot be
"merely that the errors at [the] trial created a
possibility of prejudice, but that they worked to
[the petitioner's] actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions." Frady, 456 U.S. at
170. If alleging "a miscarriage of justice would result
from the refusal of the court to entertain the collateral
attack, a movant must show actual innocence by clear and
convincing evidence." Mikalajunas, 186 F.3d at
493. "To establish actual innocence, [the] petitioner
must demonstrate that *in light of all the evidence, '
'it is more likely than not that no reasonable juror
would have convicted him.'" Bousley v. United
States, 523 U.S. 614, 623 (1998) (quoting Schlup v.
Delo, 513 U.S. 298, 327-28 (1995)).
the procedural default bar does not apply to claims of
ineffective assistance of counsel, which are properly
asserted for the first time in a § 2255 motion. See
United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Whether asserting ineffective assistance of counsel as
cause for excusing procedural default or as independent
grounds for relief, a petitioner must show, by a
preponderance of the evidence, that (1) "counsel's
performance was deficient, " and (2) "the deficient
performance prejudiced the defense." Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984); see
Murray v. Carrier, 477 U.S. 478, 488 (1986) (stating the
Strickland standard applies when a petitioner
alleges ineffective assistance of counsel as cause excusing a
procedural default). The Petitioner must "satisfy both
prongs, and a failure of proof on either prong ends the
matter." United States v. Roane, 378 F.3d 382,
404 (4th Cir. 2004). "» [U] nsubstantiated and
largely conclusory statements' are insufficient to carry
a petitioner's burden as to the two prongs of this test .
. . ." Umar v. United States, 161 F.Supp.3d
366, 375 (E.D. Va. 2015) (quoting United States v.
Turcotte, 405 F.3d 515, 537 (7th Cir. 2005) (alteration
petitioner satisfies the deficient performance prong when he
shows that counsel's conduct "fell below an
objective standard of reasonableness . . . under prevailing
professional norms." Strickland, 4 66 U.S. at
687-88. However, "[J]udicial scrutiny of counsel's
performance must be highly deferential" because
"[i]t is all too tempting for a defendant to
second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable." Id. at 689.
"Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance . . . ." Id.
To demonstrate prejudice, a petitioner must show "a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694. In doing so,
a petitioner "must demonstrate that the error worked to
his 'actual and substantial disadvantage, ' not
merely that the error created a 'possibility of
prejudice.'" Satcher v. Pruett, 126 F.3d
561, 572 (4th Cir. 1997) (quoting Murray, 477 U.S.
process of law also requires that a defendant receive
effective assistance of counsel on direct appeal. Evitts
v. Lucey, 469 U.S. 387, 396-97 (1985). As with trial
counsel, effectiveness of appellate counsel is evaluated
under the two prongs of Strickland. Smith v.
Robbins, 528 U.S. 259, 285 (2000). To determine
effectiveness of appellate counsel, a court must evaluate
whether counsel failed to raise "a particular
nonfrivolous issue [that] was clearly stronger than issues
that counsel did present" on direct appeal.
Smith, 528 U.S. at 288. However, appellate counsel
"need not (and should not) raise every nonfrivolous
issue." Id.; Jones v. Barnes, 463 U.S.
745, 752-53 (1983) ("A brief that raises every colorable
issue runs the risk of burying good arguments.").
Accordingly, although "it is still possible to bring a
Strickland claim based on counsel's failure to
raise a particular claim, ... it is difficult to demonstrate
that counsel was incompetent." Smith, 528 U.S.
at 288. As to prejudice, a petitioner must show a reasonable
probability that, but for counsel's unprofessional
errors, his appeal would have been successful. See
id. at 285-86, 288.
Motion is the Petitioner's first under 28 U.S.C. §
2255, and it is timely. The Motion raises nine grounds for
relief: (1) the Petitioner's Fifth and Sixth Amendment
rights were violated when an interpreter deliberately
mistranslated and/or refused to translate statements by the
Petitioner to his trial attorneys and to the court, Mem.
Supp. at 8, 22; Reply at 8; (2) the Petitioner's trial
attorneys were ineffective for their failure to identify and
correct the alleged interpreter problem, Mem. Supp. at 13,
24; Reply at 37; (3) the Petitioner's Fifth Amendment
rights were violated when he was convicted of multiplicitous
counts in violation of the Double Jeopardy Clause, Mem. Supp.
at 31; (4) the Petitioner's convictions for multiple
conspiracy charges violate his Fifth and Sixth Amendment
rights, id. at 48; (5) the Petitioner's Fifth
and Sixth Amendment rights were violated by the trial
court's refusal to let him call a witness, id.
at 58, 59; (6) the Petitioner's Fifth and Sixth Amendment
rights were violated by the court's "systematic
exclu[sion]" of Somali citizens and Muslims from the
jury pool, id. at 65; (7) there was insufficient
jurisdiction and/or evidence to convict the Petitioner of the
firearms charges, id. at 69, 72, 75; Reply at 72-73;
(8) the Petitioner's trial attorneys were ineffective for
operating under a conflict of interest, Mem. Supp. at 19; and
(9) the Petitioner's trial attorneys were ineffective for
failing to assert a duress defense, id. at 24. The
Petitioner also requests an evidentiary hearing, id.
at 22, 30; discovery, id. at 30; and appointments of
counsel and an interpreter to assist him in this habeas
proceeding, id. at 75.
Grounds One and Two
One presents a challenge based on the Fifth Amendment's
Due Process Clause and the Sixth Amendment's
Confrontation Clause. Id. at 8, 22. The government
asserts that Ground One is procedurally defaulted, and it is.
Resp. at 13. As cause excusing this default, the Petitioner
alleges ineffective assistance of counsel. Mot. at 10; Mem.
Supp. at 22. The Petitioner's argument for ineffective
assistance as cause is the same as his argument for his
freestanding ineffective assistance claim raised as Ground
Two: The Petitioner's trial attorneys were ineffective
for failing to recognize and correct the alleged interpreter
problem; had his attorneys fixed the interpreter problem, the
Petitioner alleges he would have been able to assist in his
defense-specifically, by explaining to his attorneys facts
allegedly supporting a duress defense. See Mem.
Supp. at 14-16, 18, 22, 24; Reply at 7-8, 37. Because both
Grounds One and Two rely on this alleged interpreter problem,
the court addresses them together.
alleged interpreter problem is summarized as follows: The
interpreter provided to the Petitioner to assist him in his
preparation of his defense, Hassan E. Ali ("Ali"),
deliberately mistranslated and/or refused to translate his
statements to his trial attorneys and to the court, and even
threatened the life of the Petitioner. Mem. Supp. at 12, 15;
Reply at 8. Specifically, the Petitioner asserts that Ali
refused to translate the Petitioner's statements that
would have supported a duress defense at trial. Mem. Supp. at
14-15, 24; Reply at 8. He also alleges that Ali did this by
reason of belonging to the same clan as that of the majority
of the other pirates, but which was a different Somali clan
than that of the Petitioner. Mem. Supp. at 12; Reply at 14.
Petitioner has not made the requisite showing under
Strickland, as his trial attorneys' failure to
recognize and correct the alleged interpreter problem was
neither deficient nor prejudicial. A petitioner alleging
interpreter inadequacies must make more than conclusory
allegations to satisfy the Strickland test. Umar,
161 F.Supp.3d at 375; see id. at 385-87 (finding
mere conclusory allegations of inability to understand
interpreters due to difference in dialect insufficient to
make a showing of prejudice under Strickland).
Additionally, "court interpreters are entitled to a
presumption that they execute their official duties with
propriety, accuracy, and integrity." Michel,
849 F.Supp.2d at 657. A petitioner "must adduce specific
evidence" to rebut this presumption. Id.
Ali, a court-appointed interpreter, is entitled to the
presumption of propriety, accuracy, and integrity. See
Id. However, the Petitioner has offered only general and
contradictory allegations about Ali's performance as an
• "[T]he Language qualifications were to be
desired, a simple yes or no answer was turned into another
answer, [the Petitioner] was unable to understand what the
answer was, but was sure it was longer than intended."
Mem. Supp. at 16.
• "When [the Petitioner] began the translation of
the incident, his interpreter began misinterpretation of
what [the Petitioner] was saying. When he was then
'threatened, ' that if he did not plea, he would be
killed by the 'Majeerteen Family, ' and that the
Interpreter . . . was also from the 'Majeerteen
Family.' Id. at 12.
• "[T]he Interpreter refused to properly translate
to [the Petitioner's] Counsel, and also to the Court that
the facts were incorrect and being made up by the
Interpreter." Id. at 15.
• "The statements for the simple answers were
longer than necessary, and the Interpreter was not
translating the information to either Counsel or the
Court." Id. at 18.
• "The interpreter's qualification and language
skills were of a person who was aware of the Somali 
language, and further fluent in the language of
America." Id. at 21.
• "The Interpreter's actions, and translation
subsequent to the conversation were consistent to the
statements that were translated." Reply at 13.
allegations do not qualify as the sort of "specific
evidence" necessary to overcome the presumption in favor
of court interpreters. See Michel, 849 F.Supp.2d at
657-58 & n.lO; see ...