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Abshir Osman v. United States

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

January 14, 2020



          Raymond A. Jackson, United States District Judge.

         Before 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.


         On 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.

         On 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.

         On 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.

         On 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.

         Petitioner 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).

         On 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.


         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 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 ...

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