United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United States District Judge.
the Court is Abdi Razaq Abshir Osman's
("Petitioner") pro se Motion to Vacate,
Set Aside, or Correct a Sentence pursuant to Title 28, United
States Code, Section 2255 ("§ 2255 Motion").
ECF No. 469. Having reviewed the motion and filings, the
Court finds that a hearing is not necessary to address
Petitioner's motion. See 28 U.S.C. §
2255(b). For reasons set forth below, Petitioner's §
2255 Motion is DENIED.
FACTUAL AND PROCEDURAL HISTORY
April 10, 2010, Petitioner and co-defendants attempted to
commit piracy on a United States Navy vessel - the USS
Ashland. ECF No. 140 at 4. The defendants approached the USS
Ashland in a small skiff in the Gulf of Aden and the fired
AK-47s at the USS Ashland, Id. In response, the USS
Ashland returned fire, destroying the skiff, and killing one
of the passengers. Id. Crew members of the USS
Ashland then took defendants into custody. Id.
April 21, 2010, Petitioner was one of several defendants
named in a five-count Indictment charging defendants with
Piracy and firearm related offenses. ECF. No. 3. On July 7,
2010, the Government filed an eight-count Superseding
Indictment. ECF No. 72. On June 9, 2010, Petitioner's
counsel, Trey R. Kelleter, filed a Motion to Dismiss the
firearm related charges in the Indictment. ECF No. 50.
Petitioner's counsel also joined a Joint Motion to
Dismiss Count One of the Indictment charging defendants with
Piracy, in violation of 18 U.S.C. § 1651. ECF No. 51.
August 17, 2010, the Court granted Defendants' Joint
Motion to Dismiss Count One of Indictment. ECF No. 94. On May
23, 2012, the United States Court of Appeals for the Fourth
Circuit (''Fourth Circuit") vacated the district
court order. ECF No. 136. Thereafter, the Government filed a
Second Superseding Indictment reinstating the Piracy count in
a ten-count Indictment. ECF No. 140. Petitioner was charged
with nine counts: Conspiracy to Commit Hostage Taking (Count
One), Conspiracy to Commit Kidnapping (Count Two), Conspiracy
to Perform Act of Violence Against Persons on a Vessel (Count
Three), Conspiracy Involving a Firearm and a Crime of
Violence (Count Four), Piracy under the Law of Nations (Count
Five), Attack to Plunder Vessel (Count Six), Assault with a
Dangerous Weapon on Federal Officers and Employees (Count
Seven), Act of Violence Against Persons on a Vessel (Count
Eight), and Use of a Firearm During a Crime of Violence
(Count Ten). Id. at 2-13.
February 15, 2013, Petitioner's counsel filed a Motion in
Limine to exclude evidence of alleged admissions noticed by
the United States. ECF Nos. 185, 186. During trial.
Petitioner's counsel also filed an objection to the
government's use of testimony by an expert on piracy. ECF
No. 197. On February 27, 2013, after a six-day jury trial,
Petitioner was convicted on all counts. ECF No. 210. On March
13, 2013, Petitioner's counsel joined a Joint Motion on
behalf of all defendants for Judgement of Acquittal based on
insufficient evidence to sustain defendants' convictions.
ECF No. 222. That same day, Petitioner's counsel joined a
Motion to Dismiss Count Two of the Superseding Indictment,
Conspiracy to Commit Kidnapping, arguing that Count One and
Count Two were multiplictous. ECF No. 223. The Court denied
both motions. ECF No. 244. On May 14, 2014, Petitioner was
sentenced to 240 months imprisonment. ECF Nos. 268, 276.
appealed his conviction and the United States appealed the
sentence on the Piracy count (Count Five). ECF Nos. 287, 293.
The Fourth Circuit affirmed the conviction, but reversed the
sentence on the Piracy Count, concluding that mandatory life
sentences under 18 U.S.C. § 1651 do not violate the
Eighth Amendment. ECF Nos. 342, 343; see also 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 the Piracy count plus 360 months
consecutive. ECF Nos. 376, 384. Petitioner appealed again,
and the Fourth Circuit affirmed. ECF Nos. 394, 431-32;
see also United Slates v. Osman, 705 Fed.Appx. 190
(4th Cir. 2017).
March 15, 2019, Petitioner filed his pro se §
2255 Motion. ECF No. 469. The Government responded in
opposition on August 9, 2019. ECF No. 492. Petitioner replied
by letter asking the Court to reevaluate his sentence for Use
of a Firearm During a Crime of Violence (Count Ten). ECF No.
499. On November 15, 2019, Petitioner filed an updated
memorandum in support of his § 2255 Motion. ECF No. 508.
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).
an individual may raise a procedurally defaulted claim if he
or 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 [his or her] actual and substantial
disadvantage, infecting [his or 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 ...