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Cabaase v. United States

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

August 14, 2019



          Raymond A. Jackson United States District Judge

         Before 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 PART.


         This 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. Id.

         The men 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.

         Petitioner 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).

         On 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.


         A. Section 2255

         Section 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).

         When 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 at 493.

         B. Ineffective Assistance of Counsel

         A 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 two showings.

         First, 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 ...

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