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Subasic v. United States

United States District Court, E.D. North Carolina, Western Division

July 31, 2018

ANES SUBASIC, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         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.

         BACKGROUND

         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) (counts twelve and thirteen). All defendants[1] 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.

         DISCUSSION

         A. Standard of Review

         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.

         B. Analysis

         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.

(M&R (DE 2261) at 6).

         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.

         1. Claims 1to 6 are either barred or 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 abroad[5] 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 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.).

         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. (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 original)).

         Petitioner is correct that the Fourth Circuit resolved issues regarding the admission of these records based on Rules 403 and 901(a).[7] 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 immigration charges.”).

         By so 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, [8] 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.

         Absent 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 curiam).

         Accordingly, petitioner's claims 2 to 5 are barred as having been previously litigated on direct review.

         Additionally, 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.

         First, “[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 Cir. 2006).

         The 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.

         The 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.[9]

         Finally, 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 and indictment.”).

         Petitioner 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.”).[10]

         Here, 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.

         In sum, 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.[11]

         2. Claims 7 to 17 and 19 to 25 are barred, and claims 7 to 25 are without merit.

         Claims 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).[12] Additionally, petitioner claims 7 to 25 are without merit. The court will address the merits of each claim in turn below.

         a. Claim 7

         In 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) ¶ 69)).

         Although 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.

         Petitioner's claim 7 is without merit.

         b. Claim 8

         In 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).

         As 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.[13]

         Petitioner 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).

         For the reasons stated by the magistrate judge, petitioner's claim 8 is without merit.

         c. Claim 9

         In 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).

         Petitioner 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 (1981)).

         However, 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).[14]

         The 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 suffice.”).

         Petitioner's 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 ...


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