Beyle v. United States, CIVIL ACTION NO. 2:16cv603

• Decision Date: 01 September 2017
• Docket Number: CIVIL ACTION NO. 2:16cv603,[ORIGINAL CRIMINAL NO. 2:11cr34–2]
• Citation: 269 F.Supp.3d 716
• Parties: Abukar Osman BEYLE, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

269 F.Supp.3d 716

Abukar Osman BEYLE, Petitioner,

v.UNITED STATES of America, Respondent.

CIVIL ACTION NO. 2:16cv603

[ORIGINAL CRIMINAL NO. 2:11cr34–2]

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

Signed September 1, 2017

Abukar Osman Beyle, pro se.

Brian J. Samuels, United States Attorney's Office, Fountain Plaza Three, 721 Lakefront Commons, Suite 300, Newport News, VA 23606, Joseph E. DePadilla, United States Attorney's Office, 101 W. Main Street, Suite 8000, Norfolk, VA 23510, for Respondent.

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:

• CountOne: Conspiracy to Commit Hostage Taking Resulting in Death, in violation of 18 U.S.C. §§ 1203(a), 3238, and 2.

• CountsTwothroughFive: Hostage Taking Resulting in Death, in violation of 18 U.S.C. §§ 1203(a), 3238, and 2.

• CountSix: Conspiracy to Commit Kidnapping, in violation of 18 U.S.C. §§ 1201(c) and 3238.

• CountsSeventhroughTen: Kidnapping Resulting in Death, in violation of 18 U.S.C. §§ 1201(a)(2), 3238, and 2.

• CountEleven: 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.

• CountsTwelvethroughFifteen: Violence Against Maritime Navigation Resulting in Death, in violation of 18 U.S.C. §§ 2280(a)(1)(G), 2280(b)(1), 3238, and 2.

• CountsSixteenthroughNineteen: Murder Within the Special Maritime and Territorial Jurisdiction of the United States, in violation of 18 U.S.C. §§ 1111, 3238, and 2.

• CountTwenty: Piracy Under the Law of Nations, in violation of 18 U.S.C. §§ 1651, 3238, and 2.

• CountTwenty–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.

• CountsTwenty–TwothroughTwenty–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.

• CountTwenty–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, ––– U.S. ––––, 136 S.Ct. 179, 193 L.Ed.2d 144 (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, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (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, 102 S.Ct. 1584, 71 L.Ed.2d 816 (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

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