United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge
the Court is Abdicasiis Cabaase's
("Petitioner") pro se Motion to Vacate,
Set Aside, or Correct a Sentence pursuant to Title 28, United
States Code, Section 2255. For reasons set forth below,
Petitioners Motion is GRANTED IN PART, DENIED IN
FACTUAL AND PROCEDURAL HISTORY
case involves conduct back in February and April 2010. On
February 27, 2010, Petitioner and his codefendants decided to
try and commit piracy on a Royal Navy vessel from the United
Kingdom, the HMS Chatham. ECF No. 140 at 3. On April 10,
2010, the same group attempted to commit piracy again, this
time on a United States Navy vessel, the U.S.S. Ashland.
Id. at 4. This time, the group began firing their
AK-47s at the vessel, but the U.S.S. Ashland returned fire.
were indicted in the Eastern District of Virginia on ten
counts: Count One, conspiracy to commit hostage taking; Count
Two, conspiracy to commit kidnapping; Count Three, conspiracy
to perform an act of violence against a person on a vessel;
Count Four, conspiracy involving a firearm and a crime of
violence; Count Five, piracy under the law of nations; Count
Six, attack to plunder a vessel; Count Seven, assault with a
dangerous weapon on federal officers and employees; Count
Eight, act of violence against persons on a vessel; and,
finally, Counts Nine and Ten, use and possession of a firearm
in furtherance of a crime of violence. Id. at 2-13.
Petitioner went to trial and was found guilty on all counts.
ECF No. 208. On May 15, 2014, Petitioner was sentenced to a
total of 510 months imprisonment. ECF No. 270.
appealed his convictions and the United States appealed the
sentences on Count Five-the piracy count. ECF Nos. 287, 304.
The United States Court of Appeals for the Fourth Circuit
("Fourth Circuit") affirmed the convictions, but
reversed the sentences on Count Five, concluding that
mandatory life sentences under 18 U.S.C. § 1651 are not
disproportionate to the offense in this case and, therefore,
do not violate the Eighth Amendment. United States v.
Said, 798 F.3d 182, 200 (4th Cir. 2015), cert,
denied, 136 S.Ct. 2448 (2016). Following a remand for
resentencing, the Court resentenced Petitioner to Life
imprisonment on Count Five and 360 consecutive months on all
other counts. Petitioner appealed again, and the Fourth
Circuit affirmed. United States v. Osman, 705
Fed.Appx. 190 (4th Cir. 2017).
September 10, 2018, Petitioner filed the instant motion and
argues five grounds for relief. ECF No. 455. First,
Petitioner challenges both of his convictions under 18 U.S.C.
§ 924(c)(1)(A). Id. at 4. Petitioner also
raises four ineffective assistance of counsel claims.
Id. at 5. On September 18, 2018, the Court ordered
the Government to respond. ECF No. 457. The Government filed
its Response in Opposition on November 30, 2018. ECF No. 465.
Petitioner did not file a reply. On July 17, 2019, the Court
held an evidentiary hearing on the four alleged issues of
ineffective assistance of counsel. ECF No. 488.
2255 allows a federal prisoner "claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States
... [to] move the court which imposed the sentence to vacate,
set aside or correct the sentence." 28 U.S.C. §
2255. In a § 2255 motion, the petitioner bears the
burden of proving his or her claim by a preponderance of the
evidence. See Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958). Additionally, pro se filers are
entitled to more liberal construction of their pleadings.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
deciding a § 2255 motion, the Court must promptly grant
a hearing "unless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief." 28 U.S.C. § 2255(b). Motions under
§ 2255 generally "will not be allowed to do service
for an appeal." Sunal v. Large, 332 U.S. 174,
178-79 (1947). For this reason, issues already fully
litigated on direct appeal may not be raised again under the
guise of a collateral attack. United States v.
Dyess, 730 F.3d 354, 360 (4th Cir. 2013). Issues that
should have been raised on direct appeal are deemed waived,
procedurally defaulted, and cannot be raised on a 2255
Motion. United States v. Mikalajunas, 186 F.3d 490,
492 (4th Cir. 1999). However, an individual may raise a
procedurally defaulted claim if he/she can show (1)
"cause and actual prejudice resulting from the errors of
which he complains" or (2) that "a miscarriage of
justice would result from the refusal of the court to
entertain the collateral attack.. .. [meaning] the movant
must show actual innocence by clear and convincing
evidence." Id. at 492-93. To demonstrate cause
and prejudice, a petitioner must show the errors "worked
to [her] actual and substantial disadvantage, infecting [her]
entire trial with error of constitutional dimensions."
United States v. Frady, 456 U.S. 152, 170 (1982).
Ineffective assistance of counsel claims should generally be
raised in a collateral motion instead of on direct appeal and
constitute sufficient cause to review a procedurally
defaulted claim. See Untied States v. Benton, 523
F.3d 424, 435 (4th Cir. 2008); Mikalajunas, 186 F.3d
Ineffective Assistance of Counsel
viable ineffective assistance of counsel claim arises when
"the counsel's conduct so undermined the proper
functioning of the adversarial process that the trial did not
result in a just outcome." Strickland v.
Washington, 466 U.S. 668, 686 (1984). To prove a claim
of ineffective assistance of counsel, a petitioner must make
a petitioner must show that counsel's performance was
deficient. Id. at 687. Counsel's errors must
have been so serious that he or she was not actually
functioning as "counsel" as guaranteed by the Sixth
Amendment. Id. In order to demonstrate deficient
performance, a petitioner must show "that counsel's
representation fell below an objective standard ...