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Beyle v. United States

United States District Court, E.D. Virginia, Norfolk Division

September 1, 2017

ABUKAR OSMAN BEYLE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Original Criminal No. 2:11cr34-2

          OPINION

          REBECCA BEACH SMITH, CHIEF JUDGE.

         This 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.[1] 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.[2] ECF No. 1012. The matter is now ripe for review.

         I.

         In 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.

         On 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.

         Once on 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.

         Before 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.

         On 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 were captured.

         While 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 3238.
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, and 2.
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, and 2.
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, and 2.

See Superseding Indictment, ECF No. 237.

         On July 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.[3] 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).

         On 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).[4] 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.

         II.

         A 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).

         Furthermore, "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. at 167-68.

         If a 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)).

         Importantly, 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 in original)).

         A 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. at 494).

         Due 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.

         III.

         This Motion is the Petitioner's first under 28 U.S.C. § 2255, and it is timely.[5] The Motion raises nine[6] 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.

         A. Grounds One and Two

         Ground 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.

         The 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.

         The 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.

         Here, 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 interpreter:

• "[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.

         These 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 ...


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