United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
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
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)
(counts twelve and thirteen). All defendants were named in
counts one and two (“the terrorism counts”) while
counts twelve and thirteen (“the immigration
counts”) confronted only this defendant.
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).
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. (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).
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
filed the instant motion to vacate on February 25, 2016,
asserting 26 claims in support of his motion. 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.
Standard of Review
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).
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.
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.
(M&R (DE 2261) at 6).
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.
Claims 1to 6 are either barred or are without merit.
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). In support of its case, the government
offered into evidence at trial documentation of
petitioner's criminal history abroad as well as the
testimony of two individuals as to the origins and
authenticity of the documents.
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.
• 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”;
• Claim 6 alleges that the court erred by admitting
various of the foreign records in violation of Fed.R.Evid.
(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).
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 Fed.Appx. 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.).
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.
(See Objs. to M&R (DE 2265) at 3 (“Response
[by the Fourth Circuit] was given only on the issues
of Fed.R.Evid. 403 and 901(a).”) (emphasis in
is correct that the Fourth Circuit resolved issues regarding
the admission of these records based on Rules 403 and
901(a). See Subasic, 568 Fed.Appx. at 235
(“We have thoroughly reviewed the record and conclude
that the district court did not abuse its discretion in
admitting the foreign records at Subasic's trial on the
ruling, the Fourth Circuit found the documents in question
sufficiently probative and properly authenticated, which
clearly encompass petitioner's claim 2, based on Rule
403,  and claims 3 to 5, which argue that the
court failed to properly authenticate the documents at issue.
Petitioner's citation to United States v.
Perlmuter, 693 F.2d 1290 (9th Cir. 1982) is inapposite.
In Perlmuter, the court reversed the district court
for holding authentic and admissible an Israeli “rap
sheet” purporting to list four of defendant's
convictions where the trial court determined authenticity
based solely on the documents' “aura of
authenticity.” Id. at 1292. Here, as stated
above, the Fourth Circuit found the documents in question to
be properly authenticated, documentation presented primarily
through the testimony of Igor Rajic, an FBI legal
attaché, and Vlado Jovanic, Director of Professional
Standards for the Ministry of International Affairs of the
Republic of Srpska.
a change in the law, petitioner cannot relitigate a claim on
collateral review that was decided on direct review. See
United States v. Roane, 378 F.3d 382, 396 n.7 (4th Cir.
2004) (“Because the Defendants have not pointed to any
change in the law that warrants our reconsideration of these
claims, we agree with the district court that they cannot
relitigate these issues.”); Boeckenhaupt v. United
States, 537 F.2d 1182, 1183 (4th Cir. 1976) (per
petitioner's claims 2 to 5 are barred as having been
previously litigated on direct review.
as described below, petitioner's claims 1 and 6 fail
because these records were not offered by the government for
the truth of the matter asserted, therefore no hearsay
concerns exist and the Confrontation Clause and Due Process
Clause are not implicated.
“[h]earsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.”
Fed.R.Evid. 801(c). A court may admit evidence, including
statements made by someone other than the declarant if it is
not offered for the truth of the matter asserted and is
otherwise relevant. See, e.g., Beech Aircraft
Corp. v. Rainey, 488 U.S. 153, 173 n.18 (1988); see
also United States v. Williams, 445 F.3d 724, 736 (4th
records at issue and supporting testimony were introduced not
to prove that petitioner had previously committed a crime but
to show that petitioner had lied on his naturalization form
as to his criminal history. (See Immigration Trial,
September 19, 2011 (DE 2144) at 38 (“One thing I just
want you to keep in mind throughout this trial, this case is
not about whether Mr. Subasic actually committed crimes . .
., the question is whether he was arrested at any point,
whether he was charged or whether he was detained or served
time in prison. The question ultimately is whether he lied
about that.”)). Thus, no hearsay concerns exist.
Confrontation Clause bars “admission of testimonial
statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had a prior
opportunity for cross-examination.” Crawford v.
Washington, 541 U.S. 36, 53-54(2004). For a statement to
be excludable under the Confrontation Clause, it must be
“testimonial, ” United States v.
Udeozor, 515 F.3d 260, 268 (4th Cir. 2008), and offered
for the truth of the matter asserted, Crawford, 541
U.S. at 59 n. 9 (the Confrontation Clause does not bar the
use of “testimonial statements for purposes other than
establishing the truth of the matter asserted”).
Because the records at issue and supporting testimony were
not offered for the truth of the matter asserted, the
Confrontation Clause is not implicated.
petitioner asserts that admittance of foreign convictions and
police records violate the Due Process Clause. (See
Mot. to Vacate (DE 2224-2) at 1-4). Petitioner is correct
that “[t]he Confrontation Clause of the Sixth Amendment
and the Due Process Clause of the Fifth Amendment together
guarantee a defendant charged with a felony the right to be
present at all critical stages of his trial.”
United States v. Rolle, 204 F.3d 133, 136 (4th Cir.
2000). But defendant's presence at his immigration and
terrorism trials is not in dispute, and his presence at any
preceding trial does not bear upon this litigation. See
United States v. Nicaragua-Rodriguez, No. 98-4019, 1998
WL 738548 *1-2 (4th Cir. Oct. 22, 1998)
(“Nicaragua-Rodriguez submitted a written application
for naturalization as a United States citizen in August 1994
. . . . The Government was not required to prove that [she]
was legally arrested or that the shooting she was arrested
and indicted for was unjustified. The Government needed only
to prove the fact that [she] knowingly concealed the arrest
offers no binding precedent calling into question the above
analysis. Petitioner does offer numerous examples of
non-binding precedent, the most applicable of which is
United States v. Causevic, 636 F.3d 998, 1002-04
(8th Cir. 2011). There, the Eight Circuit recognized that
criminal judgments may be admitted to show that a defendant
has a prior conviction without violating the Confrontation
Clause. Id. at 1002. However, the court held that
“the Bosnian judgment at issue here [rendered in
absentia] was testimonial because the government used it as
evidence that Mr. Causevic had lied when he said that he had
not killed anyone, ” thus the judgment could not be
admitted without violating the Confrontation Clause to show
defendant made a materially false statement in an immigration
matter about defendant's criminal conduct. Id.
at 1004. Unlike here, the Bosnian judgment was offered for
the truth of the matter asserted. See id. at 1008
(Shepherd, J., concurring) (“The Government offered the
prior conviction as proof that Mr. Causevic actually
committed the charged offense rather than merely as proof of
his conviction. Thus, the factual narrative was also hearsay
because it was offered for its truth.”).
petitioner's prior convictions were not offered to prove
petitioner had committed crimes, but that petitioner had lied
on his immigration forms as to his criminal history, and thus
this evidence is not hearsay and does not implicate the
Confrontation Clause or the Due Process Clause.
petitioner's claims 1to 6 fail for not raising
inapplicable challenges to the admission of the records at
issue and as already having been decided on direct review by
the Fourth Circuit. Additionally, the court's analysis as
well as the Fourth Circuit's holding establishes that
petitioners claims 1 to 6 are without merit.
Claims 7 to 17 and 19 to 25 are barred, and claims 7 to 25
are without merit.
7 to 17 and 19 to 25 are procedurally barred because
petitioner failed to raise them in his appeal. A defendant
who brings a direct appeal cannot raise in a collateral
proceeding issues that he could have, but did not, raise in
the appeal unless he can show cause and prejudice, or actual
innocence. United States v. Pettiford, 612 F.3d 270,
280 (2004). Additionally, petitioner claims 7 to 25
are without merit. The court will address the merits of each
claim in turn below.
claim 7, petitioner contends that the court erred in imposing
a terrorism enhancement, pursuant to U.S.S.G. §
3Al.4(a), in sentencing petitioner for his convictions on the
immigration counts. (Mot. to Vacate (DE 2224-1) at 19-20).
The magistrate judge recommended this claim fails because the
court did not impose a terrorism enhancement as to these
convictions, noting that the court did impose the terrorism
enhancement in sentencing petitioner on the terrorism
convictions. (M&R (DE 2261) at 8 (citing Presentence
Investigation Report (“PSR”) (DE 2089) ¶
somewhat unclear, petitioner apparently concedes that the
terrorism enhancement was applied on the terrorism
convictions but argues that he unfairly received the
statutory maximum sentence on the immigration counts outside
of the guidelines. (Objs. to M&R (DE 2265) at 13). First,
this claim fails because a challenge to the advisory
guideline range may not be brought in a § 2255
proceeding. See United States v. Newbold,
791F.3d455, 459 (4th Cir. 2015) (citing United States v.
Foote, 784 F.3d 931, 932-33, 940-43 (4th Cir. 2015)).
Additionally, petitioner did not receive a sentence outside
of the guidelines. The statutory maximum term of imprisonment
for each of count 12 and count 13 is 10 years, and the
guidelines provided for life imprisonment but was reduced to
120 months in view of the maximum allowed by statute. (PSR
(DE 2089) ¶¶ 93-94). Petitioner received 120 months
on each of count 12 and count 13, as provided by statute.
claim 7 is without merit.
claim 8, petitioner contends that the special administrative
measures (“SAMs”), pursuant to 28 C.F.R. §
501.3, that applied to his incarceration violated his rights
to due process, to a fair trial, to have compulsory process
to secure the attendance of witnesses favorable to him, to
prepare and present an impartial defense, to retain an
attorney of his choice, to impartially exercise his pro se
rights, and to obtain access to the courts with respect to
both of his trials. (Mot. to Vacate (DE 2224-1) at 21-25;
Mot. to Vacate (DE 2224-2) at 21-27).
pointed out by the magistrate judge, the record plainly
discredits this claim. (See M&R (DE 2261) at 8-9).
The record for both trials shows petitioner's ability to
file numerous, expansive motions and other documents on his
behalf (including two motions to suppress (DE 816, DE 1179));
his active participation in pretrial and trial in-court
proceedings; efforts made by the court to ensure SAMs did not
unduly interfere with petitioner's trial preparation
(see, e.g., DE 1531 at 1-6; DE 1571 at 6); and the
availability to him of stand-by counsel to handle matters he
himself was unable to handle.
provides no specific objection to the magistrate judge's
assertions above, and only argues that the government in
their motion to dismiss tried to discredit this claim solely
by noting petitioner's ability to “file motions and
documents.” (Objs. to M&R (DE 2265) at 14).
reasons stated by the magistrate judge, petitioner's
claim 8 is without merit.
claim 9, petitioner asserts that the court erred in not
questioning prospective jurors during voir dire about
religious and national prejudice in his terrorism trial.
(Mot. to Vacate (DE 2224-1) at 26-28). The magistrate judge
recommends this claim fails because petitioner has not
alleged facts showing that any actually prejudiced jurors
were seated or that any prejudice played any role in his
conviction. (M&R (DE 2261) at 9).
objects to that determination, arguing that he was not
allowed during voir dire to ask about religious and national
prejudice, he is now unable to allege facts showing
prejudiced jurors were seated or that prejudice played a role
in his conviction. (Objs. to M&R (DE 2265) at 14-15 (citing
Rosales-Lopez v. United States, 451 U.S. 182, 190
review of the voir dire proceedings for the terrorism trial
show that the court asked potential jurors the following:
“If the evidence displays that the defendant or others
allegedly involved in the crimes at issue are Muslim, are
there any among you who would say that this fact alone causes
you to assume that the defendant is guilty or not guilty,
” and that multiple jurors were dismissed who indicated
possible bias towards the Muslim community. (Terrorism Trial,
May 8, 2012 (DE 2147) at 80-81, 143-45, 250-51). Review of
the voir dire proceedings additionally reveal that jurors
were asked about their experiences in other countries, and
the court took every effort to accommodate petitioner's
requests regarding questioning of potential jurors as to
whether their experiences in other countries had created any
bias. (See id. at 258-59).
court recognizes that petitioner submitted to the court over
100 pages of hand-written questions to be asked to the jury
at the terrorism trial, (see DE 1234; DE 1936), the
vast majority of which were not asked, (see
Terrorism Trial, May 8, 2012 (DE 2147)). However, the court
was not obligated to ask each of petitioner's proposed
questions. See United States v. Brown, 767 F.2d
1078, 1083 (4th Cir. 1985) (citations omitted) (a trial court
“need not ask every single question on [the] subject
which the ingenuity of counsel can devise. A general query
whether any juror is unable to judge the case fairly because
of race, creed or color of the defendant should
claim 9 fails in petitioner has not alleged facts showing
that any actually prejudiced jurors were seated, that
prejudice played any role in his conviction, or that the
court did in fact reject ...