Said v. United States

Decision Date19 July 2021
Docket NumberCRIMINAL ACTION NO. 2:10-cr-57-1
CourtU.S. District Court — Eastern District of Virginia
PartiesMOHAMED ALI SAID, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Before the Court is Petitioner's Motion to Vacate pursuant to 28 U.S.C. § 2255, filed through counsel on January 19, 2021. ECF 547. On March 19, 2021, the Government filed a response in opposition and Petitioner replied on April 15, 2021. ECF Nos. 573, 587. Having reviewed the motion and filings, this Court finds that a hearing is not necessary to address these motions. For the reasons set forth below, Petitioner's Motion is GRANTED.


On February 27, 2013, a jury convicted Petitioner of the following:

• Count 1: Conspiracy to Commit Hostage Taking, in violation of 18 U.S.C. § 1203(a);
• Count 2: Conspiracy to Commit Kidnapping, in violation of 18 U.S.C. § 1201(c);
• Count 3: Conspiracy to Perform Act of Violence Against Persons on a Vessel, in violation of 18 U.S.C. § 2291(a)(9);
• Count 4: Conspiracy Involving a Firearm and a Crime of Violence, in violation of § 924(o);
• Count 5: Piracy under the Law of Nations, in violation of 18 U.S.C. § 1651;
• Count 6: Attack to Plunder a Vessel, in violation of 18 U.S.C. § 1659;
• Count 7: Assault with a Dangerous Weapon on Federal Officers and Employees, in violation of 18 U.S.C. § 111(a)(1), (b);
• Count 8: Act of Violence against Persons on a Vessel, in violation of 18 U.S.C. § 2291(a)(6);
• Counts 9 and 10: Use or Possession of a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A).

ECF No. 204. On March 13, 2013, Petitioner moved for acquittal pursuant to Rule 29 and filed a Motion to Dismiss Count Two. ECF Nos. 222, 223. On August 1, 2013, the Court denied Petitioner's motion to dismiss. ECF No. 244. On February 28, 2014, the Court declined to impose statutorily mandated life sentences on the Petitioner, reasoning that such a sentence would contravene the Eighth Amendment's prohibition against cruel and unusual punishment. ECF No. 260. On May 16, 2014, Petitioner was sentenced to a total of 500 months' imprisonment. ECF No. 274. On May 21, 2014, the Government filed an appeal with the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit"). ECF No. 287. On August 13, 2015, the Fourth Circuit reversed the Eighth Amendment Order, vacated the defendants' sentences, and remanded for resentencing. ECF Nos. 342, 343; see also United States v. Said, 680 F.3d 374 (4th Cir. 2012). On September 9, 2016, the U.S. Supreme Court denied Petitioner's Writ for Certiorari. ECF No. 351.

On November 7, 2016, Court re-sentenced Petitioner to aggregate prison sentence of 396 months, consisting of 120 months on Counts 1, 2, 3, 4, 5, 6, 7, and 8, all to be served concurrently; 96 months on Count 9, to be served consecutively to Count 1; and 180 months on Count 10, to be served consecutively to Count 9. ECF Nos. 375, 379. ECF No. 379, at 3.

On July 29, 2020, the Court denied Petitioner's Motion to reduce under the First Step Act. ECF No. 490. On July 8, 2020, Petitioner filed a Motion to Vacate under 28 U.S.C. § 2255. On July 17, 2020, the Government filed a Motion to Dismiss or Strike Petitioner's § 2255 Motion. On November 20, 2020, the Court granted the Government's motion to Dismiss without prejudice Petitioner's § 2255 Motion and granted Petitioner leave to file his petition pursuant to the rules governing § 2255 proceedings within sixty (60) days. On January 19, 2021 (60 days later), Petitioner filed the instant Motion to Vacate under 28 U.S.C. § 2255.


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 ofconstitutional 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. Moreover, a habeas petition is cognizable when, based on a change in the law subsequent to his conviction, a defendant claims that his "conviction and punishment are for an act that the law does not make criminal." Davis v. United States, 417 U.S. 333, at 346 (1974); see also Welch v. United States, 136 S. Ct. 1257, 1267 (2016); Teague v. Lane, 489 U.S. 288 (1989).


Petitioner raises two claims for collateral review. ECF No. 574. First, Petitioner argues that Count Nine of the Second Superseding Indictment must be vacated because, in light of the Supreme Court's decisions in Davis and Johnson, the underlying conspiracy offense does not qualify as a predicate crime of violence pursuant to § 924(c). ECF 547; see United States v. Davis, 139 S. Ct. 2319 (2019) (holding that the residual clause of definition of violent felony in § 924, providing mandatory minimum sentences based on using, carrying, or possessing a firearm in connection with a federal crime of violence, was unconstitutionally vague.); see also, Johnson v. United States, 576 U.S. 591, 591 (2015) (holding that 18 U.S.C.A. § 924(e)(2)(B)(ii)'s definition of prior "violent felony" in the residual clause of the Armed Career Criminal Act is unconstitutionally vague under due process principles.). Second, Petitioner alleges that Counts Four and Ten must also be vacated because at least three of the alternative predicate offenses underlying the 924 convictions do not qualify as crimes of violence. See 18 U.S.C. § 924(c)(3)(B) (previously defining a crime of violence under the residual clause as a felony offense "that by its nature[ ] involves a substantial risk that physical force against the person or property of anothermay be used in the course of committing the offense"); see also, Welch v. United States, 136 S. Ct. 1257, 1263-1268 (2016) (holding that the Johnson decision, announced a substantive rule that applied retroactively on collateral review.).

The Court will address each claim in turn.

A. Petitioner's Claims are Not Procedurally Defaulted

As an initial mater, the Court finds that Petitioner's claims are not procedurally defaulted. The Government argues that Petitioner's claims are procedurally defaulted because he did not raise these issues on direct appeal and that also he cannot show actual innocence or neither cause nor prejudice to excuse default. See ECF No. 573 at 7-12.

Issues that should have been raised on direct appeal are deemed waived, procedurally defaulted, and cannot be raised on a § 2255 Motion. Mikalajunas, 186 F.3d at 492. Accordingly, a petitioner's default for a claim on collateral review "may be excused in two circumstances: where [Petitioner] can establish (1) that he is 'actually innocent' or (2) 'cause' for the default and 'prejudice resulting therefrom." United States v. Fugit, 703 F.3d 248, 253-54 (4th Cir. 2012) (quoting Bousley v. United States, 523 U.S. 614, 621-22 (1998)). The Court will examine these issues in turn.

1. Petitioner Did Not Establish Actual Innocence

First, the Court finds that Petitioner has not established actual innocence. "To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623 (internal quotation marks omitted). "'[A]ctual innocence' means factual innocence, not mere legal insufficiency." Id. at 623-24 (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). Here, Petitioner has not argued that he is innocent. Thus, where Petitioner fails to provide any factual allegations to support thisclaim, the Court cannot grant such a claim. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir 1992).

2. Petitioner has Actual Cause and Prejudice

Second, however, the Court finds that Petitioner has actual cause and prejudice.

The "actual prejudice" inquiry focuses on "the errors of which [the movant] complains." United States v. Frady, 456 U.S. 152, at 168 (1982). Particularly, the Court must examine whether a movant can...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT