Umar v. United States

• Decision Date: 02 March 2015
• Docket Number: Criminal No.: 2:10cr56,Civil No.: 2:14cv68
• Citation: 161 F.Supp.3d 366
• Parties: Abdi Mohammed Umar, Petitioner, v. United States of America, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

161 F.Supp.3d 366

Abdi Mohammed Umar, Petitioner,

v.United States of America, Respondent.

Criminal No.: 2:10cr56

Civil No.: 2:14cv68

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

Signed March 2, 2015

John Staige Davis, V., Williams Mullen, Richmond, VA, Benjamin Lucas Hatch, Joseph E. DePadilla, United States Attorney's Office, Norfolk, VA, Jerome Teresinski, U.S. Department of Justice, Washington, DC, for Respondent.

James Richard Theuer, James R. Theuer, PLLC, Norfolk, VA, for Petitioner.

OPINION AND ORDER

Mark S. Davis

, UNITED STATES DISTRICT JUDGE

This matter is before the Court on a Motion to Vacate, Set Aside, or Correct Sentence, filed by Petitioner Abdi Mohammed Umar, (“Petitioner”) pursuant to 28 U.S.C. § 2255

(“Pet'r's § 2255 Motion”). ECF No. 375. The crux of Petitioner's § 2255 motion involves his counsel's failure to adequately challenge the Government's alleged spoliation of evidence through the destruction of a vessel. However, Petitioner also asserts additional ineffective assistance of counsel claims and a sufficiency of the evidence claim in his reply brief in support of his § 2255 motion. The Court finds that an evidentiary hearing is unnecessary because the record conclusively demonstrates that Petitioner is not entitled to the relief sought in his § 2255 motion. See R. Governing § 2255 Proceedings in U.S. Dist. Cts. 8(a). For the reasons discussed below, with respect to his ineffective assistance of counsel claims, Petitioner's § 2255 motion is DENIED . Regarding his sufficiency of the evidence claim, Petitioner's § 2255 motion is DISMISSED as procedurally defaulted and, in the alternative, DENIED on the merits.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 1, 2010, the USS Nicholas, a United States Navy frigate, was on a counter-piracy mission in the Indian Ocean between Somalia and the Seychelles. In the early morning on that date, Abdi Wali Dire, Gabul Abdullahi Ali, and Mohammed Modin Hasan approached the Nicholas in an attack skiff (“the attack skiff”), believing that the Nicholas was a merchant vessel. While Dire, Ali, and Hassan operated the attack skiff, Petitioner and Abdi Mohammed Gurewardher (collectively with Dire, Ali, Hassan, and Petitioner, “Defendants”) remained on a larger mother ship (“the mother ship”) some distance away. After Dire, Ali, and Hasan fired on the Nicholas with assault rifles, they quickly learned that they had unwittingly attacked a naval vessel when the crew of the Nicholas responded in kind. Following a short exchange of gunfire, Dire, Ali, and Hasan fled in their attack skiff. The Nicholas pursued the attack skiff, and captured it, Dire, Ali, and Hasan. During the pursuit, the crew of the Nicholas spotted on the horizon a flashing light emanating from the mother ship. Once the Nicholas had seized the attack skiff, its crew destroyed the attack skiff because the Nicholas did not have the capability to bring the skiff aboard the vessel and towing the skiff would have jeopardized the vessel's ability to pursue the mother ship. The Nicholas then pursued and captured the mother ship, Petitioner, and Gurewardher. The crew of the Nicholas attempted to tow the mother ship for approximately two days. However, at one point during the tow, the sponson on the mother ship, to which the tow line had been attached, broke off. Although the crew of the Nicholas managed to rig another tow line to the mother ship thereafter, the Nicholas was only able to tow the mother ship for a few additional hours before the mother ship capsized. The crew of the Nicholas then sunk the mother ship.

On April 20, 2010, a federal grand jury returned a six-count indictment against Defendants. On July 7, 2010, a federal grand jury returned a fourteen-count superseding indictment against Defendants charging Petitioner with: Piracy under the Law of Nations (Count One); Attack to Plunder a Vessel (Count Two); Act of Violence Against Persons on a Vessel (Count Three); Conspiracy to Perform an Act of Violence Against Persons on a Vessel (Count Four); Assault with a Dangerous Weapon in the Special Maritime Jurisdiction (Counts Five and Six); Assault with a Dangerous Weapon on Federal Officers and Employees (Counts Seven and Eight); Conspiracy Involving a Firearm and a Crime of Violence (Count Nine); Using, Carrying, and Possessing a Firearm in Relation to a Crime of Violence (Counts Ten and Eleven); Using, Carrying, and Possessing a Destructive Device in Relation to a Crime of Violence (Count Twelve); Carrying an Explosive During the Commission of a Felony (Count Thirteen); and Conspiracy to Carry an Explosive During the Commission of a Felony (Count Fourteen).

On July 30, 2010, Ali moved to dismiss all of the Counts of the Superseding Indictment on the basis that the United States Navy's intentional destruction of the attack skiff prevented Defendant from putting on a meaningful defense, in violation of the Fifth and Sixth Amendments. ECF No. 112. Ali argued that the attack skiff contained exculpatory evidence that the crew of the Nicholas had destroyed in bad faith. On October 29, 2010, the Court denied Ali's motion to dismiss based on the Government's alleged spoliation of the evidence in the attack skiff. United States v. Hasan , 747 F.Supp.2d 642, 698 (E.D.Va.2010)

. The Court found that the Government had no duty to preserve the attack skiff because the crew of the Nicholas could not have done so without seriously limiting their ability to complete their military mission. Id. In addition, the Court found that Ali had failed to present any evidence demonstrating bad faith on the part of the Government in destroying the attack skiff and that photographs and video footage of the attack skiff served as substitutes for any physical evidence from the skiff. Id.

On November 24, 2010, following an eleven-day trial, a jury returned separate verdicts of guilty against Defendants on all counts. Thereafter, Petitioner filed a Rule 29 motion for acquittal, ECF No. 229, on Counts One, and Seven through Fourteen. On March 9, 2011, the Court dismissed Count Thirteen of the Superseding Indictment as multiplicitous, but denied the remainder of Petitioner's Rule 29 motion. Opinion and Order, ECF No. 296. On March 14, 2011, the Court sentenced Petitioner to a total term of imprisonment of life plus nine-hundred sixty months on the remaining counts of the Superseding Indictment.¹

On March 22, 2011, Petitioner appealed his conviction to the United States Court of Appeals for the Fourth Circuit, alleging that: as to Count One, the Court improperly instructed the jury and denied Petitioner's post-trial Rule 29 motion; the Court erroneously denied Petitioner's motion to suppress his statements aboard the Nicholas; and the Court improperly refused to merge Counts Ten through Twelve for sentencing purposes. On May 23, 2012, in a published opinion, the Fourth Circuit affirmed Petitioner's conviction and his co-defendants' convictions. United States v. Dire , 680 F.3d 446 (4th Cir.2012)

. On January 22, 2013, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. Dire v. United States , –––U.S. ––––, 133 S.Ct. 982, 184 L.Ed.2d 765 (2013).

On February 5, 2014, Petitioner filed his § 2255

motion. ECF No. 375. On February 27, 2014, the Court ordered the Government to file a response to Petitioner's motion. On March 18, 2014, the Government filed a motion to compel counsel for Petitioner, Mr. James E. Short, to file an affidavit responding to Petitioner's ineffective assistance claims, ECF No. 378, which motion to compel the Court granted on March 19, 2014, ECF No. 380. On June 30, 2014, the Government filed its response to Petitioner's motion, along with an affidavit of Mr. Short responding to Petitioner's claims. ECF No. 394. After receiving leave of Court, ECF No. 397, on August 14, 2014, Petitioner filed a reply to the Government's response. ECF No. 401. Accordingly, this matter is ripe for review.

II. STANDARD OF REVIEW FOR § 2255

MOTION

A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court “to vacate, set aside or correct the sentence” pursuant to 28 U.S.C. § 2255

. To obtain such relief, a petitioner bears the burden of proving that his sentence or conviction was “imposed in violation of the Constitution or laws of the United States,” that the district court “was without jurisdiction to impose such sentence,” that the sentence exceeds “the maximum authorized by law,” or that the sentence or conviction is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). To obtain relief, a petitioner must prove the asserted grounds for relief by a preponderance of the evidence. Miller v. United States , 261 F.2d 546, 547 (4th Cir.1958). Because a § 2255 motion “is ordinarily presented to the judge who presided at the original conviction and sentencing ... the judge's recollection of the events at issue may enable him summarily to dismiss a § 2255 motion.” Blackledge v. Allison , 431 U.S. 63, 74 n. 4, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).

A § 2255

motion is, in essence, a statutory federal habeas corpus action that collaterally attacks a sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal. See In re Jones , 226 F.3d 328, 333 (4th Cir.2000) (“ '[Section] 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.' ” (quoting Davis v. United States , 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) )). The existence of the right to pursue a collateral attack does not displace a direct appeal as the ordinary method for challenging a conviction or sentencing determination. United States v. Allgood , 48 F.Supp.2d 554, 558 (E.D.Va.1999). To the contrary, with limited exceptions, a petitioner advancing new claims asserted for the first time in a § 2255 motion “must clear a significantly higher hurdle than would exist on direct appeal.”

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