Subasic v. United States
| Decision Date | 31 July 2018 |
| Docket Number | NO. 5:16-CV-89-FL,NO. 5:09-CR-216-FL-3,5:09-CR-216-FL-3,5:16-CV-89-FL |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | ANES SUBASIC, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
This matter is before the court on petitioner's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, (DE 2224), and the government's motion to dismiss, (DE 2231). Pursuant to 28 U.S.C. § 636(b)(1)(B), United States Magistrate James E. Gates entered memorandum and recommendation ("M&R"), (DE 2261), wherein it is recommended that the court deny petitioner's motion and grant respondent's motion. Petitioner timely filed objections to the M&R, and in this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the recommendation of the M&R, denies petitioner's motion, and grants respondent's motion.
Indictment in this case was returned on July 22, 2009, which charged petitioner and his seven co-defendants with numerous terrorism-related crimes. (DE 3). Superseding indictment was returned on September 24, 2009, (DE 145), and a second and final superseding indictment was returned on November 24, 2010, (DE 670). Ultimately, petitioner was charged with conspiracy to provide material support to terrorists in violation of 18 U.S.C. § 2339A (count one); conspiracy to murder, kidnap, maim, and injure persons in a foreign country in violation of 18 U.S.C. § 956(a) (count two); and unlawful procurement of naturalization as an American citizen by making false statements in an application for naturalization in violation of 18 U.S.C. § 1425(a) (). All defendants1 were named in counts one and two ("the terrorism counts") while counts twelve and thirteen ("the immigration counts") confronted only this defendant.
On January 28, 2011, the court severed the immigration counts and ordered a separate trial as to those. (DE 750). A two-day Faretta hearing was held on May 10 and 13, 2011, in which the court granted petitioner's motion to proceed pro se, while appointing petitioner stand-by counsel. (DE 980). On August 5, 2011, the court severed petitioner's trial regarding the terrorism counts from that of petitioner's remaining, counseled co-defendants Sherifi, Hassan, and Yaghi. (DE 1283).
On September 19, 2011, jury trial lasting five days commenced as to the immigration counts against petitioner, presided over by Senior United States District Judge Malcolm J. Howard in Greenville, North Carolina ("immigration trial"). (DE 1459). On the same day, co-defendants Sherifi, Hassan, and Yaghi's trial commenced before this court at New Bern, North Carolina, lasting 17 days.2 (DE 1463, DE 1503). On May 9, 2012, petitioner's jury trial on the remaining terrorism counts, lasting 27 days, commenced before this court ("terrorism trial"). (DE 1950).
Petitioner was found guilty on the immigration counts at trial presided over by Senior District Judge Howard, and the terrorism counts at trial presided over by the undersigned. On August 24, 2012, this court sentenced petitioner on all counts, with petitioner receiving a term of imprisonment of 180 months on count one, 360 months on count two, and 120 months on counts twelve and thirteen, all terms to run concurrently. Petitioner appealed, and the Court of Appeals for the Fourth Circuit affirmed. United States v. Subasic,568 Fed. App'x 234 (4th Cir. 2014). On February 23, 2015, the Supreme Court denied petitioner's petition for a writ of certiorari. Subasic v. United States, 135 S. Ct. 1443 (2015).
Petitioner filed the instant motion to vacate on February 25, 2016, asserting 26 claims in support of his motion.3 On April 5, 2016, the government filed the instant motion to dismiss. Petitioner subsequently filed a response, the government replied, and petitioner filed surreply. The magistrate judge entered M&R on November 13, 2017. On December 1, 2017, petitioner filed objections to the M&R to which the government filed response.
The district court reviews de novo those portions of the M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for "clear error," and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b). "The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions, or the [§ 2255 Rules], may be applied to" § 2255 proceedings. Rules Governing Section 2255 Proceedings, Rule 12.
In petitioner's motion to vacate, petitioner asserts 26 claims applicable to either the immigration trial, the terrorism trial, or both. The magistrate judge recommends denying petitioner's motion in that:
claims 1 to 6 fail because they are procedurally barred for having been encompassed in petitioner's appeal and because, based on the Fourth Circuit's decision, they are meritless; claims 7 to 25 fail both because they are procedurally barred for not having been raised on appeal when they could have been and because petitioner has not shown they that they have merit; and claim 26 fails because petitioner has not shown that it has merit.
Petitioner objects to the magistrate judge's recommendation regarding each claim. The court will address each objection in turn below, and holds 1) claims 1 to 6, regarding admissibility of certain documents and testimony in the immigration trial, are either barred for having been encompassed in petitioner's appeal or are without merit; 2) claims 7 to 25 are either barred for not having been raised on appeal or are without merit; and 3) petitioner's claims for ineffective assistance of appellate counsel, including claim 26, are without merit.
Petitioner's first trial, the immigration trial, focused on whether petitioner made false statements to immigration officials on his path to citizenship. Petitioner was indicted for representing on his formal application for naturalization that 1) he had never been charged with committing any crime or offense and 2) he had not given false or misleading information to any United States official while applying for any immigration benefit, when he stated on previous applications that he had never been charged with a violation of law and he had never been arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance. (DE 1474; see also DE 670).4 In support of its case, the government offered into evidence at trial documentation of petitioner's criminal history abroad5 as well as the testimony of two individuals as to the origins and authenticity of the documents.6
Claims 1 to 6 allege that the court erred on several grounds in admitting at the immigration trial records of foreign convictions in absentia, foreign police records, and testimony relating to these records. Specifically:
• Claim 1 alleges that the court violated the due process and confrontation clauses by admitting the foreign conviction and police records;
• Claim 2 alleges that the court erred by admitting prejudicial inflammatory details of crimes from the foreign conviction and police records in violation of Fed. R. Evid. 403;
• Claim 3 alleges that the court erred by finding that the testimony of government witnesses was sufficient to establish the authenticity of various of the foreign records under Fed. R. Evid. 901(a);
• Claim 4 alleges that the court erred in not applying Fed. R. Evid. 901(b)(7) in finding various of the foreign records to be authentic;
• Claim 5 alleges that the court erred by "refusing to decide the prongs of 'reliability and trustworthiness' required by the federal shop book rule to authenticate court records and police reports"; and
• Claim 6 alleges that the court erred by admitting various of the foreign records in violation of Fed. R. Evid. 803.
(Mot. to Vacate (DE 2224) at 4-9; Mot. to Vacate (DE 2224-1) at 1-18; Mot. to Vacate (DE 2224-2) at 1-20).
The magistrate judge recommends dismissal of these claims as barred because "in petitioner's appeal to the Fourth Circuit, petitioner unsuccessfully challenged the court's admission of the foreign records as a proper exercise of the court's discretion." (M&R (DE 2261) at 7 (citing Subasic, 568 F. App'x at 235)). Additionally, the magistrate judge states the "Fourth Circuit's ruling establishes that claims 1 to 6 are also meritless," providing "an additional ground for their dismissal." (Id.).
Petitioner argues that most of the above claims could not have been responded to by the Fourth Circuit in that these claims were not raised on direct appeal by petitioner's counsel....
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